CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL
AND OTHER SPECIAL RIGHTS OF PREFERRED
STOCK AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
SFX BROADCASTING, INC.
SERIES B REDEEMABLE PREFERRED STOCK
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PURSUANT TO SECTION 151
OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The following resolution has been duly adopted by the Board of Directors
(such Board, including any committee thereof duly authorized to act on behalf
of such Board, herein referred to as the "Board") of SFX Broadcasting, Inc.,
a Delaware corporation (the "Corporation"), pursuant to the provisions of
Section 151 of the General Corporation Law of the State of Delaware, which
resolution remains in full force and effect as of the date hereof:
WHEREAS, the Board is authorized, within the limitations and restrictions
stated in the Restated Certificate of Incorporation of the Corporation, to
fix by resolution or resolutions the voting rights, if any, of each series of
Preferred Stock, par value $.01 per share (the "Preferred Stock"), of the
Corporation and the designations, preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions thereof; and
WHEREAS, it is the desire of the Board, pursuant to its authority as
aforesaid, to authorize and fix the terms of a series of Preferred Stock and
the number of shares constituting such series:
RESOLVED, that there is hereby authorized and created a series of
Preferred Stock on the terms and with the provisions (in addition to those
set forth in the Restated Certificate of Incorporation of the Corporation
that are applicable to all Preferred Stock) as follows:
Section 1. Designation and Number of Shares.
The series of Preferred Stock shall be designated the "Series B
Redeemable Preferred Stock" (the "Series B Preferred Stock"). The number of
authorized shares of Series B Preferred Stock shall be four thousand (4,000).
Section 2. Rank.
The Series B Preferred Stock shall, as to the distribution of assets
upon the liquidation, dissolution or winding up of the Corporation, rank (i)
prior to the "Common Shares" of the Corporation, as defined in Section 4.1(c)
of the Corporation's Restated Certificate of Incorporation, and any other
capital stock of the Corporation (other than (a) the Series A Redeemable
Preferred Stock; par value $.01 per share, of the Corporation (the "Series A
Preferred Stock"); and (b) any other class or series of a class of capital
stock of the Corporation the terms of which expressly provide that the shares
thereof rank senior or on a parity as to the payment of dividends and the
distribution of assets upon the liquidation, dissolution or winding up of the
Corporation with the shares of the Series B Preferred Stock) (such
securities, other than those described in the immediately preceding
parenthetical clause, collectively referred to herein as the "Junior
Securities") and (ii) on a parity with the Series A Preferred Stock and any
other class or series of a class of capital stock of the Corporation the
terms of which expressly provide that the shares thereof rank on a parity as
to the payment of dividends and the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation with the shares of
the Series B Preferred Stock (the "Parity Securities").
Section 3. Dividends.
The holders of the Series B Preferred Stock shall not be entitled to
receive any dividends.
Section 4. Redemption.
(a) The Corporation shall redeem one thousand shares of Series B
Preferred Stock on each of the second, third, fourth and fifth anniversaries
of the closing of the Corporation's initial public offering of its shares
of Class A Common Stock, or if any such date is not a business day in
new York, New York, then on the next succeeding date that is such a
business day (the "Redemption Date") at the redemption price per share equal
to one hundred per cent (100%) of the Liquidation Preference (as define din
Section 5 hereof) per share, without interest. The Board of Directors of the
Corporation shall select the shares of the Series B Preferred Stock to be
redeemed from the outstanding shares not previously called for redemption by
lot or pro rata as determined by the Board of Directors of the Corporation in
their sole discretion.
(b) At least 10 days but not more than 20 days prior to the Redemption
Date, a written notice shall be mailed to each holder of record of shares of
the Series B Preferred Stock to be redeemed in a postage prepaid envelope
addressed to such holder at such holder's post office address as shown on the
records of the Corporation, notifying such holder of the redemption of its
shares, stating the Redemption Date, the redemption price to be paid
therefor, and calling upon such holder to surrender its certificate or
certificates for its shares to the Corporation on the Redemption Date at the
place
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designated in such notice of redemption. On or after the Redemption
Date each holder of shares of the Series B Preferred Stock to be redeemed
shall present and surrender its certificate or certificates for such shares
to the Corporation at the place designated in such notice and thereupon the
redemption price of such shares shall be paid to or on the order of the
person whose name appears on such certificate or certificates as the owner
thereof and each surrendered certificate shall be cancelled. From and after
the redemption Date (unless default shall be made by the Corporation in
payment of the redemption price), all rights of the holders of the Series B
Preferred Stock to be redeemed as stockholders of the Corporation, except the
right to receive the redemption price thereof upon the surrender of
certificates representing the same, shall cease and terminate and such shares
shall not thereafter be transferred (except with the consent of the
Corporation) on the books of the Corporation, and such shares shall not be
deemed to be outstanding for any purpose whatsoever.
(c) If the Corporation shall fail to discharge any of its obligations
to redeem shares of Series B Preferred Stock pursuant to Section (4)(b)
(each, a "Mandatory Redemption Obligation"), the applicable Mandatory
Redemption Obligation shall be discharged as soon as the Corporation is able
to discharge such Mandatory Redemption Obligation. If and for so long as any
Mandatory Redemption Obligation shall not have been fully discharged, the
Corporation shall not (i) declare, pay or set apart for payment dividends or
make any other distribution on or with respect to any Parity Securities or
Junior Securities, other than dividends paid or distributions made in shares
of Junior Securities; or (ii) redeem, purchase, retire or otherwise acquire
for any consideration, or make any payment on account of a sinking fund or
other similar fund for redemption, purchase, retirement or acquisition of,
any Junior Securities or any Parity Securities, or any warrant, right or
option to purchase any thereof, or make any distribution in respect thereof,
directly or indirectly, whether in cash, obligations or securities of the
Corporation or other property, except, (x) in the case of Junior Securities,
redemptions, purchases, retirements, acquisitions or distributions made in
shares of Junior Securities and (y) in the case of Parity Securities, pro
rata so that the amounts redeemed, purchased, retired or otherwise acquired
or paid or distributed in respect thereof, as the case may be, per share on
the Series B Preferred Stock and such other Parity Securities in all cases
bear to each other the same ratio that required redemption payments per share
on the shares of Series B Preferred Stock and such other Parity Securities
bear to each other.
(d) Any cash payment to a holder of shares of Series B Preferred Stock
on the Redemption Date shall be made in coin or currency of the United States
that as of the date of payment shall be legal tender for payment of public
and private debts by mailing a check to such holder at the address as shown
on the stock books of the Corporation.
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Section 5. Liquidation.
The shares of Series B Preferred Stock shall rank prior to the shares
of Junior Securities upon liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary (a "Liquidation Transaction"),
so that in the event of any Liquidation Transaction, the holders of shares of
Series B Preferred Stock then outstanding shall be entitled to receive out of
the assets or surplus funds of the Corporation available for distribution to
its stockholders, or proceeds thereof, whether from capital, surplus or
earnings, before any distribution is made to holders of any Junior Securities,
a liquidation preference (the "Liquidation Preference") in the amount per
share of Series B Preferred Stock equal to One Thousand ($1,000) Dollars. If,
upon any Liquidation Transaction, the assets or surplus funds of the
Corporation, or proceeds thereof, whether from capital, surplus or earnings,
distributable among the holders of shares of Series B Preferred Stock and any
Parity Securities then outstanding are insufficient to pay in full the
preferential liquidation payments due to such holders, such assets or proceeds
shall be distributable among such holders ratably in accordance with the amounts
that would be payable on such shares of Series B Preferred Stock and Parity
Securities if all amounts payable thereon were payable in full. In the event of
a Liquidating Transaction, the Corporation shall give written notice to the
holders of shares of Series B Preferred Stock, by first class mail to such
holders' respective addresses as shown on the stock books of the Corporation.
Neither the consolidation, merger or other business combination of the
Corporation with or into any other person or persons nor the sale of all or
substantially all the assets of the Corporation shall be deemed to be a
Liquidation Transaction.
Section 6. Voting Rights.
The holders of shares of Series B Preferred Stock shall not be
entitled to any voting rights except as required by law.
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IN WITNESS WHEREOF, SFX Broadcasting, Inc. has caused this Certificate of
Designations, Preferences and Relative, Participating Optional and other
Special Rights of Preferred Stock and Qualifications, Limitations and
Restrictions thereof of its Series B Redeemable Preferred Stock to be duly
executed by its Executive Vice President and Secretary attested to by its
Assistant Secretary and has caused its corporate seal to be affixed hereto,
as of this 28th day of September, 1993.
/s/ Howard J. Tytel
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Name: Howard J. Tytel
Title: Executive Vice President
and Secretary
ATTEST:
/s/ Richard A. Liese
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Name: Richard A. Liese
Title: Assistant Secretary
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STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
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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 CERTIFICATE OF AMENDMENT
OF "SFX BROADCASTING, INC.," FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY OF
JULY, A.D. 1994, AT 1 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7553308
DATE: June 26, 1995
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
SFX BROADCASTING, INC.
SFX Broadcasting, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"),
DOES HEREBY CERTIFY:
FIRST: That a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendments
to be advisable and directing that the proposed amendment be considered at
the next annual meeting of the stockholders of said corporation. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing Article Five thereof so that, as amended, said
Article shall be and read as follows:
"ARTICLE FOUR
CAPITAL STRUCTURE
4.1 Authorized Shares. The total number of shares of stock which the
Corporation shall have authority to issue is 22,210,000 shares,
consisting of the following:
(a) 10,000,000 shares of Class A Common Stock par value $.01 per
share (the "Class A Shares");
(b) 1,000,000 shares of Class B Common Stock, par value $.01 per
share (the "Class B Shares");
(c) 1,200,000 shares of Class C Common Stock, par value $.01 per
share (the "Class C Shares" and together with the Class A Shares and
Class B Shares, the "Common Shares"); and
(d) 10,010,000 shares of Preferred Stock, par value $0.1 per
share (the "Preferred Shares").
4.2 Designations, Preferences, etc. The designations, preferences,
powers, qualifications, and special or relative rights or privileges
of the capital stock of the Corporation shall be as set forth in
ARTICLE FIVE and ARTICLE SIX below.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, an
annual meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the DGCL at which meeting
the necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions
of Section 242 of the DGCL.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed
by R. Steven Hicks, its President, and Howard J. Tytel, its Secretary on this
20th day of July, 1994.
By: /s/ R Steven Hicks
--------------------------------
R. Steven Hicks
President
ATTEST:
/s/ Howard J. Tytel
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Howard J. Tytel
Secretary