EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LIN TV CORP.
(Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware)
LIN TV Corp. (the "Corporation"), a corporation organized and existing
under the General Corporation Law of the State of Delaware ("Delaware Law"),
does hereby certify as follows:
A. The present name of the Corporation is "LIN TV Corp."
B. The Corporation's original Certificate of Incorporation was filed
with the Secretary of State of the State of Delaware on February 11, 1998, under
the name "Ranger Equity Holdings Corporation."
C. This Second Amended and Restated Certificate of Incorporation amends
and restates in its entirety the Amended and Restated Certificate of
Incorporation of the Corporation and was duly adopted by the Board of Directors
and by vote of the stockholders in accordance with Sections 242 and 245 of the
Delaware Law.
D. The Amended and Restated Certificate of Incorporation of the
Corporation, as amended and restated hereby (the "Certificate of Incorporation")
shall, upon filing with the Secretary of State of the State of Delaware, read in
its entirety as follows:
FIRST: The name of the Corporation is LIN TV Corp.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1013 Centre Road, the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
the Corporation Service Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts and activity for which corporations may now or
hereafter be organized under Delaware Law. The Corporation shall have all powers
that may now or hereafter be lawful for a corporation to exercise under Delaware
Law and shall have perpetual existence.
FOURTH: 1.(a) The total number of shares of capital stock of all
classes that the Corporation shall have authority to issue is 205,000,000 shares
of capital stock, consisting of (i) 5,000,000 shares of preferred stock, par
value $0.01 per share (the "Preferred Stock"), and (ii) 200,000,000 shares of
Common Stock ("Common Stock"), which shall be divided into three series as
follows: (A) 100,000,000 shares of Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock"); (B) 50,000,000 shares of Class B Common
Stock, par value $0.01 per share (the "Class B Common Stock"); and (C)
50,000,000 shares of Class C Common Stock, par value $0.01 per share (the "Class
C Common Stock").
(b) (i) Upon the filing of this Certificate of Incorporation
with the Secretary of State of the State of Delaware, each share of Class A
Common Stock and Class B Common Stock outstanding as of such filing
(respectively, "Pre-Split Class A Common Stock" and "Pre-Split Class B Common
Stock" and collectively, "Pre-Split Common Stock") shall be automatically
reclassified into, and deemed for all purposes to be, without any action on the
part of the holder thereof, 1/21st of a validly issued, fully
paid and nonassessable share of Class A Common Stock and Class B Common Stock,
respectively (respectively, "Post-Split Class A Common Stock" and "Post-Split
Class B Common Stock" and, collectively "Post-Split Common Stock"), of the
Corporation having the powers, preferences, rights, qualifications, limitations
and restrictions described herein (the "Reverse Stock Split"), (ii) immediately
following the Reverse Stock Split, one share of Post-Split Class A Common Stock
of the Corporation held by each of Fojtasek Capital, Ltd. and Carson/LIN SBS,
L.P. issued and outstanding upon the Reverse Stock Split (collectively, the "Old
Class A Common Stock") shall each be automatically reclassified into, and deemed
for all purposes to be, without any action on the part of the holder thereof,
one validly issued, fully paid and non-assessable share of Class C Common Stock
having the powers, preferences, rights, qualifications, limitations and
restrictions described herein (the "Class C Exchange"), and (iii) immediately
following the Class C Exchange, each share of Post-Split Class B Common Stock
held of record by any holder other than any affiliate of Hicks, Muse, Tate &
Furst Incorporated issued and outstanding upon the Reverse Stock Split ("Old
Class B Common Stock" and, together with the Pre-Split Common Stock, and the Old
Class A Common Stock, the "Old Common Stock") shall, be automatically
reclassified into, and deemed for all purposes to be, without any action on the
part of the holder thereof, one validly issued, fully paid and non-assessable
share of Class A Common Stock (the "Class A Exchange" and, together with the
Reverse Stock Split and the Class C Exchange, the "Recapitalization"). Each
certificate representing shares of Old Common Stock shall thereafter represent
the number and class of shares of Common Stock determined in accordance with the
previous sentence; provided, however, that each person of record holding a stock
certificate or certificates representing shares of Old Common Stock shall be
entitled to receive upon surrender of such certificate or certificates, a new
certificate or certificates representing the number and class of shares of
Common Stock to which such person is entitled. Any fractional shares of
Post-Split Common Stock resulting from the Reverse Stock Split (calculated based
on the aggregate number of shares of Post-Split Common Stock such holder is
entitled to receive as a result of the Reverse Stock Split) shall be cancelled,
and, in lieu thereof, the holders thereof shall be entitled to receive cash in
an amount equal to the fair market value thereof, as determined by the Board of
Directors of the Corporation (the "Board of Directors").
2. Provisions Relating to the Preferred Stock. The designations,
powers, preferences, rights, qualifications, limitations and restrictions of the
Preferred Stock are as follows:
(a) The shares of Preferred Stock may be issued from time to
time in one or more series thereof, the shares of each class or series
thereof to have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as are stated and expressed herein or in the
resolution or resolutions providing for the issue of such series,
adopted by the Board of Directors as hereinafter provided.
(b) Authority is hereby expressly granted to and vested in the Board
of Directors, subject to the provisions of this Article Fourth and to
the limitations prescribed by Delaware Law, to authorize the issuance
of the Preferred Stock from time to time in one or more series, and
with respect to each such series to fix by resolution or resolutions
providing for the issue of such series the voting powers, full or
limited, if any, of the shares of such series and the designations,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations and restrictions thereof. The
authority of the Board of Directors with respect to each series thereof
shall include, but not be limited to, the determination or fixing of
the following:
(i) the maximum number of shares to constitute such
series, which may subsequently be increased or decreased by
resolutions of the Board of Directors unless otherwise
provided in the resolution providing for the issue of such
series, the distinctive designation thereof and the stated
value thereof if different than the par value thereof;
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(ii) the dividend rate of such series, the conditions
and dates upon which such dividends shall be payable, the
relation that such dividends shall bear to the dividends
payable on any other class or classes of stock or any other
series of any class of stock of the Corporation, and whether
such dividends shall be cumulative or noncumulative;
(iii) whether the shares of such series shall be
subject to redemption, in whole or in part, and if made
subject to such redemption the times, prices and other terms
and conditions of such redemption, including whether or not
such redemption may occur at the option of the Corporation or
at the option of the holder or holders thereof or upon the
happening of a specified event;
(iv) the terms and amount of any sinking fund
established for the purchase or redemption of the shares of
such series;
(v) whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class
or classes of any stock or any other series of any class of
stock of the Corporation, and, if provision is made for
conversion or exchange, the times, prices, rates, adjustments,
and other terms and conditions of such conversion or exchange;
(vi) the extent, if any, to which the holders of
shares of such series shall be entitled to vote with respect
to the election of directors or otherwise;
(vii) the restrictions, if any, on the issue or
reissue of any additional Preferred Stock;
(viii) the rights of the holders of the shares of
such series upon the dissolution of, or upon the subsequent
distributions of assets of, the Corporation; and
(ix) the manner in which any facts ascertainable
outside the resolution or resolutions providing for the issue
of such series shall operate upon the voting powers,
designations, preferences, rights and qualifications,
limitations or restrictions of such class or series.
3. Provisions Relating to the Common Stock. The designations, powers,
preferences, rights, qualifications, limitations and restrictions of the Common
Stock are as follows:
(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 shares of
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 or exchangeable for shares of Common
Stock) shall be declared and paid at the same rate on the Common Stock
and only in shares of (i) Class A Common Stock (or rights to subscribe
for or to purchase shares
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of Class A Common Stock or securities or indebtedness convertible into
or exchangeable for shares of Class A Common Stock) to holders of Class
A Common Stock, (ii) Class B Common Stock (or rights to subscribe for
or to purchase shares of Class B Common Stock or securities or
indebtedness convertible into or exchangeable for shares of Class B
Common Stock) to holders of Class B Common Stock, and (iii) Class C
Common Stock (or rights to subscribe for or to purchase shares of Class
C Common Stock or securities or indebtedness convertible into or
exchangeable for shares of Class C Common Stock) to holders of Class C
Common Stock. Dividends payable under this Section 3(b) shall be paid
to the holders of record of the applicable class of the outstanding
Common Stock as their names shall appear on the stock register of the
Corporation on the record date fixed by the Board of Directors in
advance of the declaration and payment of each dividend. Any shares of
Common Stock issued as a dividend pursuant to this Section 3(b) shall,
when so issued, be duly authorized, validly issued, fully paid and
non-assessable, and free of all liens and charges. The Corporation
shall not issue fractions of shares of Common Stock on payment of such
dividend but shall pay cash in lieu of such fractional shares based
upon the then fair market value of such a share.
(c) Voting.
(i) The Class A Common Stock shall be voting stock, and
the holders of Class A Common Stock shall vote on all matters
submitted to a vote of the stockholders, with each share of
Class A Common Stock entitled to one vote.
(ii) The Class B Common Stock shall not be entitled to
vote, except as required by law and as provided in Section
3(k) of this Article Fourth.
(iii) The Class C Common Stock shall be voting stock, and
the holders of Class C Common Stock shall vote on all matters
submitted to a vote of the stockholders, with each share of
Class C Common Stock entitled to a number of votes per share
of Class C Common Stock equal to the Total Class C Votes
divided by the total number of outstanding shares of Class C
Common Stock. "Total Class C Votes" means the total number of
votes to which the outstanding shares of Class C Common Stock
will be entitled to vote in respect of any matter, which
number of votes shall be equal to (A) the quotient of the
total number of outstanding shares of Class A Common Stock
divided by 0.30 minus (B) the total number of outstanding
shares of Class A Common Stock, rounded to the nearest whole
share. By way of example, if there are two outstanding shares
of Class C Common Stock and 200,000,000 outstanding shares of
Class A Common Stock, the Total Class C Votes will equal
466,666,667 ((200,000,000 / .30) - 200,000,000) and the number
of votes per each share of Class C Common Stock will equal
233,333,334 (466,666,667 / 2). The determination as to the
number of votes each share of Class C Common Stock is entitled
shall be made (1) as of the record date established by the
Corporation for the purposes of determining the stockholders
entitled to vote or consent to the action being taken or (2)
if no such record date is established by the Corporation, as
of the record date for such action determined in accordance
with the provisions of the Delaware Law.
(iv) The holders of Common Stock are not entitled to
cumulate votes in the election of any directors.
(d) Conversion.
(i) Conversion.
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(1) Class B Common Stock. Each share of
Class B Common Stock shall be convertible at any time
at the option of the holder or holders thereof and
for no additional consideration into either (a) one
fully paid and non-assessable share of Class A Common
Stock, or (b) one fully paid and non-assessable share
of Class C Common Stock; provided, however, that no
conversion shall be effected pursuant to this Section
3(d)(i) unless any necessary approval of the Federal
Communications Commission (the "FCC") has been
obtained; provided, further, that no conversion of
shares of Class B Common Stock into shares of Class C
Common Stock shall be effected pursuant to this
Section 3(d)(i), unless the holders of at least a
majority of the Class B Common Stock outstanding on
the date on which the Conversion Notice (as defined
in Section 3(d)(ii)) is received by the Corporation
approve the conversion of such shares.
(2) Class C Common Stock. On the date that
at least a majority of the shares of Class B Common
Stock outstanding on the date of this Certificate of
Incorporation shall have been converted into shares
of Class A Common Stock pursuant to Section
3(d)(i)(1), all outstanding shares of Class C Common
Stock shall automatically, without any action on the
part of the holder thereof, be converted into an
equal number of fully paid and non-assessable shares
of Class A Common Stock for no additional
consideration.
(ii) Conversion Procedure.
(1) Class B Common Stock. At the time of a
conversion pursuant to Section 3(d)(i)(1) or, in the
event such conversion requires the consent of the
FCC, at or after the time any necessary approval of
the FCC has been obtained, 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 (x) 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, (y)
written notice (the "Conversion Notice") to the
Corporation stating that such holder or holders
elect(s) to convert such share or shares and stating
the number of shares of Class B Common Stock to be
converted, the series of Common Stock into which such
shares of Class B Common Stock are to be converted,
and the name and address in which each certificate
for shares of the applicable class of Common Stock
issued upon such conversion is to be issued and (z)
evidence reasonably satisfactory to the Corporation
of the satisfaction of the conditions to such
conversion. 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 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.
(2) Class C Common Stock. In the event of
any automatic conversion of the Class C Common Stock
pursuant to Section 3(d)(i)(2), all holders of record
of Class C Common Stock shall be given written notice
of such automatic conversion and the place where
certificates formerly representing shares of the
Class C Common Stock shall be surrendered. Such
notice need not be given in advance of the date of
automatic conversion.
(iii) Issuance of Conversion Shares.
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(1) Class B Common Stock. 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 one or
more certificates (as such holder may request)
evidencing the shares of Class A Common Stock or
Class C Common Stock, as applicable, issuable upon
conversion thereof 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 that 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 or
Class C Common Stock, as applicable, issuable upon
such conversion.
(2) Class C Common Stock. As promptly as
practicable following receipt by the Corporation of
certificates that formerly represented shares of
Class C Common Stock, the Corporation shall issue and
deliver to the holder thereof one or more
certificates (as such holder may request) evidencing
the shares of Class A Common Stock issuable upon
conversion thereof. From and after the date of
automatic conversion, all shares of Class C Common
Stock shall be deemed to represent only the right to
receive, upon delivery of the certificates formerly
representing shares of Class C Common Stock, a
certificate evidencing the number of shares of Class
A Common Stock into which such shares of Class C
Common Stock have been converted.
(iv) Dividends on Converted Shares. Any dividends
declared and not paid on shares of Class B Common Stock or
Class C 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.
(e) Reservation of Shares. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of
Class A Common Stock and Class C Common Stock, solely for the purpose
of effecting the conversions provided for herein, such number of shares
of Class A Common Stock and Class C 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 and Class C Common Stock shall be
validly issued, fully paid and non-assessable upon conversion of all of
the outstanding shares of Class B Common Stock and Class C Common
Stock. In addition, if at any time the number of authorized but
unissued shares of Class A Common Stock and Class C 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 and
Class C Common Stock to such number of shares as shall be sufficient
for such purpose.
(f) 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
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Stock, it shall at the same time effect a two-for-one stock split with
respect to the Class B Common Stock and the Class C Common Stock).
(g) 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 Section 3(g), 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.
(h) Consideration on Merger, Consolidation, etc. In any
merger, consolidation or business combination, the consideration to be
received per share by the holders of Common Stock must be identical for
each class of Common Stock, except that in any such transaction in
which shares of Common Stock are to be distributed, such Common Stock
may differ as to voting rights to the extent that voting rights now
differ among the Class A Common Stock, the Class B Common Stock and the
Class C Common Stock.
(i) Reissue of Shares. Shares of Class B Common Stock that are
converted into shares of Class A Common Stock or shares of Class C
Common Stock as provided herein shall, unless otherwise determined by
the Board of Directors, continue to be authorized shares of Class B
Common Stock and available for reissue by the Corporation as determined
by the Board of Directors. Shares of Class C Common Stock that are
converted into shares of Class A Common Stock as provided herein shall
not be available for reissue by the Corporation and the Corporation
shall take such actions as are necessary to cause such shares to cease
to be authorized shares of Class C Common Stock.
(j) No Action by Written Consent. No action required to be
taken or that may be taken at any meeting of holders of Common Stock
may be taken without a meeting, and the power of holders of Common
Stock to consent in writing, without a meeting, to the taking of any
action is specifically denied; provided, however, that holders of Class
B Common Stock may act by written consent, without a meeting, for any
action required or permitted to be authorized or approved by the
holders of Class B Common Stock in Section 3(k) of this Article Fourth.
(k) Restrictions and Limitations. So long as at least a
majority of the shares of Class B Common Stock, that were outstanding
immediately after this Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware and became effective,
remains outstanding, the Corporation shall not, and shall not permit
any subsidiary to, without the affirmative vote of the holders of at
least a majority of the voting power of the outstanding shares of Class
B Common Stock voting as a separate series, with each share of Class B
Common Stock entitled to one vote:
(i) Effect (A) any purchase, acquisition, sale,
lease, exchange, assignment, transfer or other conveyance,
directly or indirectly, in a single transaction or series of
related transactions, of any assets or business of the
Corporation or any of its subsidiaries having a total fair
market value equal to 10% or more of the fair market value of
the Common Stock outstanding on the date on which any
definitive, binding agreement is entered into regarding any
such purchase, acquisition, sale, lease, exchange, assignment,
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transfer, or other conveyance, (B) any merger or consolidation
involving the Corporation (other than transactions involving
the merger or consolidation of a wholly-owned subsidiary of
the Corporation into the Corporation or with or into another
wholly-owned subsidiary of the Corporation), or (C) any
reclassification of any securities of the Corporation or any
recapitalization, dissolution, liquidation, or winding up of
the Corporation;
(ii) Effect the issuance or sale of shares of capital
stock of the Corporation or any of its subsidiaries (or
warrants, options or rights to acquire shares of capital stock
or securities convertible into or exchangeable for capital
stock or any type of debt instrument that has equity
features), except the issuance or sale of shares of capital
stock of a wholly-owned subsidiary of the Corporation to the
Corporation or to another wholly-owned subsidiary of the
Corporation or the issuance or sale of capital stock under the
Ranger Equity Holdings Corporation 1998 Stock Option Plan, the
Ranger Equity Holdings Corporation Phantom Stock Plan, the
2002 Non-Employee Director Stock Option Plan, the 2002 Stock
Plan or the 2002 Employee Stock Purchase Plan in accordance
with the applicable provisions of such stock option plans as
they exist on the date of this Certificate of Incorporation
(collectively, the "Stock Option Plans");
(iii) Effect any redemption, repurchase or offer to
purchase made by the Corporation or any of its subsidiaries or
other acquisition of capital stock of the Corporation or any
of its subsidiaries, except the purchase of capital stock of
the Corporation in accordance with the applicable provisions
of the Stock Option Plans;
(iv) Make or permit any amendment or modification to
this Certificate of Incorporation or the bylaws of the
Corporation, by merger, consolidation, or otherwise, that
materially adversely affects the rights of the holders of
Class B Common Stock;
(v) Declare or pay any dividends on or declare or
make any other distribution, direct or indirect, on account of
the Common Stock or set apart any amount for any such purpose;
(vi) Enter into any transaction with any Affiliate
(as defined below) of the Corporation, other than advances for
travel and other normal business expenses to officers and
employees. As used in this Certificate of Incorporation,
"Affiliate" has the meaning given such term under Rule 12b-2
of the Securities Exchange Act of 1934, as amended;
(vii) Enter into any transaction except in the
ordinary course of business and pursuant to the reasonable
requirements of the business of the Corporation or any of its
subsidiaries;
(viii) Engage in any business or transaction that
would require any direct or indirect owner of an equity
interest in the Corporation (or any Affiliate of such owner)
to divest itself of any equity interest in the Corporation;
(ix) Create, incur, assume or suffer to exist, or
cause or permit any subsidiary to create, incur, assume or
suffer to exist, any indebtedness in an amount equal to 10% or
more of the fair market value of the Corporation and its
subsidiaries, taken as a whole, on the date such indebtedness
is created, incurred, assumed, or suffered to exist;
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(x) Engage in any business other than (A) any
business, the majority of whose revenues are derived from the
ownership and operation of television stations, and such
business activities as are incidental or related thereto and
(B) such other businesses as the Corporation or any of its
subsidiaries are engaged in on the date on which this
Certificate of Incorporation was filed; or
(xi) Settle, or cause or permit any subsidiary of the
Corporation to settle, any claim, lawsuit, arbitration or
administrative proceeding that is other than in the ordinary
course of business of the Corporation or any of its
subsidiaries and that involves any material restriction on the
conduct of the business of, or the continued ownership of the
assets owned by, the Corporation, its subsidiaries or any of
their respective Affiliates.
4. General.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Common Stock or
Preferred Stock from time to time for such consideration (not less than
the par value thereof) as may be fixed by the Board of Directors, which
is expressly authorized to fix the same in its absolute and
uncontrolled discretion. Shares so issued for which the consideration
shall have been paid or delivered to the Corporation shall be deemed
fully paid capital stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable
for any further payments in respect of such shares.
(b) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation shall have authority to create and issue
rights and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities
of the Corporation, and such rights and options shall be evidenced by
instrument(s) approved by the Board of Directors or a committee of the
Board of Directors. The Board of Directors or a committee of the Board
of Directors shall be empowered to set the exercise price, duration,
times for exercise, and other terms of such options or rights;
provided, however, that the consideration to be received for any shares
of capital stock subject thereto shall not be less than the par value
thereof.
FIFTH: The number, classification, and terms of the directors of the
Corporation and the procedures to elect directors and to remove directors shall
be as follows:
(a) The number of directors constituting the Board of
Directors shall be eight, plus such number of directors as may be
elected from time to time by the holders of any class or series of
Preferred Stock.
(b) The Board of Directors (other than those directors elected
by the holders of any series of Preferred Stock provided for or fixed
pursuant to the provisions hereof) shall be divided into three classes,
as nearly equal in number as possible, designated Class I, Class II and
Class III. Class I directors shall initially serve until the 2004
meeting of stockholders; Class II directors shall initially serve until
the 2002 meeting of stockholders; and Class III directors shall
initially serve until the 2003 meeting of stockholders. Commencing with
the annual meeting of stockholders in 2002, directors of each class the
term of which shall then expire shall be elected to hold office for a
three-year term and until the election and qualification of their
respective successors in office. In case of any increase or decrease,
from time to time, in the number of directors (other than Preferred
Stock Directors), the number of directors in each class shall be
apportioned as nearly equal as possible.
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(c) The directors of the Corporation need not be elected by
written ballot unless the bylaws of the Corporation otherwise provide.
(d) A director of the Corporation may be removed only for
cause. For purposes of removal of a director of the Corporation,
"cause" shall mean (a) a final conviction of a felony involving moral
turpitude or (b) willful misconduct that is materially and demonstrably
injurious economically to the Corporation. For purposes of this
definition of "cause," no act, or failure to act, by a director shall
be considered "willful" unless committed in bad faith and without a
reasonable belief that the act or failure to act was in the best
interest of the Corporation or any Affiliate of the Corporation.
"Cause" shall not exist unless and until the Corporation has delivered
to the director a written notice of the act or failure to act that
constitutes "cause" and such director shall not have cured such act or
omission within 90 days after the delivery of such notice.
SIXTH: The following provisions are included for the purpose of
ensuring that control of the Corporation remains with loyal citizens of the
United States and/or 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 (i) a person who is a
citizen of a country other than the United States; (ii) 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; (iii) a government other than the government of the United
States or of any state, territory, or possession of the United States;
or (iv) a representative of, or an individual or entity controlled by,
any of the foregoing (individually, an "Alien"; collectively, "Aliens")
in excess of 25% of the total number of shares of capital stock of the
Corporation outstanding at any time and shall have the right not to
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 by Aliens exceeding such 25% limit.
(b) No Alien or Aliens shall be entitled to vote or direct or
control the vote of more than 25% of the total number of (i) the total
number of shares of capital stock of the Corporation outstanding and
entitled to vote at any time and from time to time, or (ii) 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.
(c) The Board of Directors shall have all powers necessary to
implement the provisions of this Article Sixth.
SEVENTH: No contract or transactions between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation and
any person (as used herein "person" means other corporation, partnership,
limited liability company, association, firm, trust, joint venture, political
subdivision or instrumentality) or other organization in which one or more of
its directors, officers or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee that
authorizes the contract or transaction, or solely because his, her, or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; (ii) the material facts as to his
or her relationship or interest
10
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specially approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved, or ratified by the Board of Directors or a committee that
authorizes the contract or transaction. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee that authorizes the contract or transaction.
EIGHTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under Delaware Law, as the same exists or may
hereinafter be amended, against all expense, liability and loss (including,
without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts to be paid in settlement) reasonably incurred by such
person in connection therewith; provided, however, that except as provided
herein with respect to proceedings seeking to enforce rights to indemnification,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part hereof) initiated by such person was authorized by the
Board of Directors of the Corporation. Such right shall be a contract right and
as such shall run to the benefit of any director or officer who is to serve as a
director or officer of the Corporation while this Article Eighth is in effect.
Any repeal or amendment of this Article Eighth shall be prospective only and
shall not limit the rights to any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Eighth. Such right shall include
the right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under Delaware Law, as the same exists or may hereafter be amended. If a claim
for indemnification or advancement of expenses hereunder is not paid in full by
the Corporation within 60 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense are not permitted under
Delaware Law, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to have made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right that any person may have or hereafter
acquire under any statute, bylaw, resolution of stockholders or directors,
agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by Delaware Law, as the same exists
or may hereafter be amended.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an
11
action, suit, or proceeding, and any inquiry or investigation that could lead to
such an action, suit, or proceeding.
NINTH: A director of the Corporation shall not be personally 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 knowing
violation of law, (iii) under Section 174 of Delaware Law, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article Ninth by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In addition to
the circumstances in which a director of the Corporation is not personally
liable as set forth in the foregoing provisions of this Article Ninth, a
director shall not be liable to the Corporation or its stockholders to such
further extent as permitted by any law hereafter enacted, including without
limitation any subsequent amendment to Delaware Law.
TENTH: The Corporation expressly elects not to be governed by Section
203 of Delaware Law.
ELEVENTH: Subject to the provisions of Section 3(k) of Article Fourth
of this Certificate of Incorporation, the directors of the Corporation shall
have the power to adopt, amend, and repeal the bylaws of the Corporation.
* * * * *
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IN WITNESS WHEREOF, LIN TV Corp. has caused this Second Amended and
Restated Certificate of Incorporation to be signed by its duly authorized
officer as of May 1, 2002.
LIN TV CORP.
By: /s/ GREG SCHMIDT
--------------------------------------
Name: Greg Schmidt
-----------------------------------
Title: Vice President of New Development
and General Counsel
-----------------------------------
CERTIFICATE OF AMENDMENT
OF
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
LIN TV CORP.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
LIN TV Corp. (hereinafter called the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
A resolution was duly adopted by the Board of Directors of the Corporation
pursuant to Section 242 of the General Corporation Law of the State of Delaware
setting forth an amendment to the Second Amended and Restated Certificate of
Incorporation of the Corporation, as amended, and declaring said amendment to
be advisable. The stockholders of the Corporation duly approved said proposed
amendment by written consent in accordance with Sections 228 and 242 of the
General Corporation Law of the State of Delaware. The amendment amends Article
FIFTH, Section (a) of the Second Amended and Restated Certificate of
Incorporation of the Corporation in its entirety to read as follows:
(a) Subject to the rights of holders of any class or series of Preferred
Stock to elect directors, the number of directors of the Corporation shall be
established by the Board of Directors.
IN WITNESS WHEREOF, said LIN TV Corp. has caused this Certificate of
Amendment to be signed by its Chairman of the Board of Directors, Chief
Executive Officer and President, this 27th day of May, 2004.
LIN TV Corp.
By: /s/ Gary R. Chapman
--------------------------------------------
Name: Gary R. Chapman
Title: Chairman of the Board of Directors,
Chief Executive Officer and President