<PAGE>
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934
(Amendment No. 1)
-----------------
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement
[_] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
RADIO ONE, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, schedule or registration statement number:
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(3) Filing party:
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(4) Date filed:
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-2-
<PAGE>
April 5, 2000
Dear Fellow Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Radio One, Inc. The meeting will be held on April 28, 2000, at 9:30 a.m.,
local time, at the Park Hyatt Hotel, 1201 24th Street, NW, Washington, D.C.
Enclosed you will find a notice setting forth the business expected to come
before the meeting, the Proxy Statement and a Form of Proxy.
Whether or not you plan to attend the meeting in person, your shares should
be represented and voted at the meeting. After reading the enclosed Proxy
Statement, please complete, sign, date and promptly return the proxy in the
enclosed self-addressed envelope. No postage is required if it is mailed in
the United States. Submitting the proxy will not preclude you from voting in
person at the meeting should you later decide to do so. Your cooperation in
promptly submitting your proxy is greatly appreciated.
We look forward to seeing you at the meeting.
Sincerely,
/s/ Alfred C. Liggins, III
Alfred C. Liggins, III
Chief Executive Officer
<PAGE>
Radio One, Inc.
5900 Princess Garden Parkway
Lanham, Maryland 20706
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
APRIL 28, 2000
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders (the
"Meeting") of RADIO ONE, INC., a Delaware corporation (the "Company") will be
held on April 28, 2000 at 9:30 a.m., local time, at the Park Hyatt Hotel, 1201
24th Street, NW, Washington, D.C., for the following purposes:
1. to consider and vote upon a proposal to amend the Company's Amended
and Restated Certificate of Incorporation:
(a) to eliminate all provisions related to the Company's 15% Series A
Cumulative Redeemable Preferred Stock, par value $.01 per share (the
"Series A Preferred") and the Company's 15% Series B Cumulative
Redeemable Preferred Stock, par value $.001 per share (the "Series B
Preferred," and, together with the Series A Preferred, the "Original
Preferred Stock");
(b) to authorize the issuance of 1,000,000 shares of "Blank Check"
Preferred Stock (the "Blank Check Preferred Stock");
(c) to authorize the issuance of 150,000,000 shares of Class D Non-
Voting Common Stock (the "Class D Non- Voting Common Stock");
(d) to increase the amount of authorized shares of the Company's
Class A Common Stock, par value $.001 ("Class A Common Stock") from
30,000,000 to 150,000,000, to increase the amount of authorized shares
of the Company's Class B Common Stock, par value $.001 ("Class B Common
Stock") from 30,000,000 to 150,000,000, and to increase the amount of
authorized shares of the Company's Class C Common Stock, par value
$.001 ("Class C Common Stock" and together with the Class A Common
Stock and the Class B Common Stock, the "Common Stock") from 30,000,000
to 150,000,000;
(e) to provide holders of the Class A Common Stock the right to
convert such Class A Common Stock into Class D Non-Voting Common Stock;
(f) to make certain other conforming changes and to make certain
additional changes, including eliminating restrictions on the ability
of persons subject to Regulation Y to hold shares of Class A Common
Stock, and to simplify provisions relating to the amendment of the
Amended and Restated Certificate of Incorporation; and
2. to transact any such other business as may properly come before the
Meeting, or any postponement or adjournment thereof.
The Board of Directors of the Company has fixed the close of business on
April 5, 2000 as the record date (the "Record Date") for the determination of
the Stockholders entitled to notice of, and to vote at, the Meeting, or any
postponements or adjournments thereof. Accordingly, only Stockholders of
record at the close of business on the Record Date are entitled to notice of,
and shall be entitled to vote at, the Meeting or any postponement or
adjournment thereof. Additional information regarding the matters to be acted
on at the Special Meeting can be found in the accompanying Proxy Statement.
ALL STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING. YOUR VOTE IS
IMPORTANT. TO ENSURE YOUR REPRESENTATION AT THE MEETING, PLEASE COMPLETE,
SIGN, DATE AND PROMPTLY MAIL THE ENCLOSED PROXY CARD IN THE RETURN ENVELOPE
PROVIDED, EVEN IF YOU PLAN TO ATTEND THE SPECIAL MEETING.
<PAGE>
Submitting a Proxy will not prevent you from voting in person, should you so
desire, but it will help to attain a quorum and will avoid added solicitation
costs. You may revoke your proxy at any time before it is voted at the
Meeting.
By Order of the Board of Directors,
/s/ Linda J. Eckard
Linda J. Eckard
Assistant Secretary
2
<PAGE>
PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
APRIL 28, 2000
----------------
GENERAL
You are receiving this Proxy Statement and proxy card from us because you
own shares of Class A Common Stock, par value $.001, (the "Class A Common
Stock"), in RADIO ONE, INC., a Delaware corporation, (the "Company"). This
Proxy Statement describes the issues on which we would like you to vote. It
also gives you information so that you can make an informed decision regarding
these issues.
This Proxy Statement and its related materials are being mailed on or about
April 5, 2000 to all Stockholders of record as of the close of business on
April 5, 2000 (the "Record Date") in connection with the solicitation by the
Board of Directors of Proxies for the Special Meeting of Stockholders (the
"Meeting") to be held on April 28, 2000 at the Park Hyatt Hotel, 1201 24th
Street, NW, Washington, D.C., at 9:30 a.m., local time.
A proxy card is enclosed. Whether or not you plan to attend the Meeting in
person, please date, sign and return the enclosed proxy card as promptly as
possible in the postage prepaid envelope provided. This will ensure that your
shares will be voted at the Meeting.
Proxies will be solicited by mail, and the Company will pay all expenses of
preparing and soliciting such proxies. The persons designated as proxy in any
duly executed proxy card received, will vote on all matters presented at the
Meeting in accordance with the specifications given therein by the person
executing such proxy or, in the absence of specified instructions, will vote
in favor of the proposal indicated on such proxy. The Board of Directors does
not know of any other matter that may be brought before the Meeting, but, in
the event that any other matter should come before the Meeting, the persons
named as proxy will have authority to vote all proxies not marked to the
contrary in their discretion as they deem advisable.
Any Stockholder may revoke his or her proxy at any time before the Meeting
by written notice to such effect received by the Company at the address set
forth above, attn: Linda J. Eckard, Assistant Secretary, by delivery of a
subsequently dated proxy, or by attending the Meeting and voting in person.
Abstentions, but not broker non-votes, will be counted for purposes of
determining the presence or absence of a quorum for the transaction of
business at the Meeting. Abstentions will be counted for purposes of
determining whether a proposal has attained the majority vote necessary for
approval at the Meeting, whereas broker non-votes will not be counted for
purposes of determining whether a proposal has been approved. Thus, an
abstention will have the effect of a "no" vote, whereas a broker non-vote will
have no effect on the outcome of the voting. (A broker non-vote occurs when a
nominee who holds shares for a beneficial owner does not vote on a proposal
because the nominee does not have discretionary voting power and has not
received voting instructions from the beneficial owner.)
As of April 5, 2000, the total number of shares of the Company's Class A
Common Stock, par value $.001, ("Class A Common Stock") was 30,000,000 shares
authorized and 22,272,622 shares issued and outstanding. As of April 5, 2000,
the total number of shares of the Company's Class B Common Stock, par value
$.001, ("Class B Common Stock") was 30,000,000 shares authorized and 2,867,463
shares issued and outstanding. As of April 5, 2000, the total number of shares
of the Company's Class C Common Stock, par value $.001, ("Class C Common
Stock") was 30,000,000 shares authorized and 3,132,458 shares issued and
outstanding. As of April 5, 2000, the total number of authorized shares of the
Company's 15% Series A Cumulative Redeemable Preferred Stock, par value $.01
per share (the "Series A Preferred") was 140,000 and the total number
of authorized shares of the Company's 15% Series B Cumulative Redeemable
Preferred Stock,
<PAGE>
par value $.01 per share (the "Series B Preferred") was 150,000. There are no
shares of either Series A Preferred or Series B Preferred outstanding.
Each share of Class A Common Stock is entitled to one non-cumulative vote.
Each share of Class B Common Stock is entitled to ten non-cumulative votes. In
accordance with Section 4.3(a) of the Amended and Restated Certificate of
Incorporation of the Company, and with the exceptions described below, holders
of Class A Common Stock and Class B Common Stock will vote together as a
single class on all proposals currently scheduled to be voted upon. The vote
of holders of Class C Common Stock will be counted only with respect to the
proposed increase in the number of authorized shares of Class C Common Stock,
with each share entitled to one non-cumulative vote. Only stockholders of
record as of the close of business on April 5, 2000 will be entitled to vote.
In accordance with Section 4 of the Bylaws of the Company, Stockholders
entitled to cast at least a majority of the votes that all Stockholders are
entitled to cast on a matter to be acted upon (25,473,627 votes for all
matters other than those described below) must be present at the Meeting
either in person or by proxy in order to constitute a quorum for the
transaction of business. In accordance with the Amended and Restated
Certificate of Incorporation and the Bylaws of the Company, the vote of a
majority of the votes cast by all Stockholders entitled to vote are required
to approve the proposed amendment to the Amended and Restated Certificate of
Incorporation. In addition to the foregoing requirement, (i) pursuant to
Delaware law, the increase of the number of authorized shares of each class of
Common Stock must be approved by a majority vote of the holders of the
respective class of Common Stock; (ii) the addition of the provision
permitting holders of Class A Common Stock to convert such Class A Common
Stock into Class D Non-Voting Common Stock must be approved by a majority vote
of the holders of each class of Common Stock; and (iii) the deletion of the
provision requiring approval of the holders of two-thirds of the Class A
Common Stock for amendments to Article VIII of the Amended and Restated
Certificate of Incorporation requires the approval of the holders of two-
thirds of the Class A Common Stock. If the Stockholders approve the proposed
amendment, such amendment will become effective upon the filing of the
amendment with the Secretary of State of the State of Delaware. At any time
prior to the effectiveness of the filing of the amendment to the Amended and
Restated Certificate of Incorporation approved at the Meeting, notwithstanding
the authorization of the proposed amendment by the Stockholders of the
Company, the Board of Directors of the Company may abandon such proposed
amendment without further action by the Stockholders.
A list of Stockholders entitled to vote at the Meeting will be available at
the Company's offices at 5900 Princess Garden Parkway, Lanham, Maryland 20706
for a period of ten days prior to the Meeting and at the Meeting itself for
examination by any Stockholder.
THE MEETING
The Meeting will be held on April 28, 2000 at 9:30 a.m., local time at the
Park Hyatt Hotel, 1201 24th Street, NW, Washington, D.C.
PURPOSE OF THE MEETING
At the Meeting, the Company's Stockholders will be asked to (a) consider and
vote upon a proposal to amend the Company's Amended and Restated Certificate
of Incorporation to (i) eliminate the Company's Series A and Series B
Preferred Stock, (ii) create a class of "blank check" Preferred Stock
consisting of 1,000,000 authorized shares, (iii) create a new class of Class D
Non-Voting Common Stock consisting of 150,000,000 authorized shares, (iv)
increase the authorized number of shares of each of the Company's Class A
Common Stock, Class B Common Stock, and Class C Common Stock from 30,000,000
to 150,00,000; (v) provide holders of Class A Common Stock the right to
convert such Class A Common Stock into Class D Non-Voting Common Stock; and
(vi) make certain other changes to the Company's Amended and Restated
Certificate of Incorporation (the "Proposed Amendment"), and (b) to transact
any such other business as may properly come before the Meeting or any
postponement or adjournment thereof.
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<PAGE>
HOW YOU CAN VOTE
You may submit your proxies by attending the Meeting and voting your shares
in person. You also may choose to submit your proxies by completing the
enclosed proxy card, dating and signing it, and returning it in the postage-
paid envelope provided. If you sign your proxy card and return it without
marking any voting instructions, your shares will be voted in favor of each of
the proposals presented at the Meeting. If your shares are held in the name of
a broker, bank or other record holder (i.e., in "Street Name"), you must
either direct the record holder of your shares how to vote your shares or
obtain a proxy from the record holder to vote at the Meeting.
VOTING AND SOLICITATION OF PROXIES
All shares of Class A Common Stock represented at the Meeting by properly
executed proxies received prior to the vote at the Meeting, unless previously
revoked (as described immediately below), will be voted in accordance with the
instructions indicated thereon. Proxies are only being solicited for shares of
Class A Common Stock and not for shares of Class B Common Stock or Class C
Common Stock. Where a properly signed proxy is returned and no instructions
are given, proxies will be voted FOR the Proposed Amendment. No matters other
than those referred to above are presently scheduled to be considered at the
Meeting. A broker who holds a Stockholder's shares in Street Name will not be
entitled to vote on the Proposed Amendment without instructions from the
beneficial owner of such shares. Pursuant to the Company's Amended and
Restated Certificate of Incorporation and Bylaws, a proposal to amend the
Amended and Restated Certificate of Incorporation must be approved (with
certain exceptions) by the vote of a majority of the votes eligible to be cast
by the Stockholders at the Meeting, and, as a result, abstentions will have
the same effect as a vote against such proposal, whereas broker non-votes will
have no effect on the voting.
Abstentions may be specified on the proposal. Abstentions will be counted as
present for purposes of the item on which the abstention is noted and, thus,
have the effect of a vote against the proposal. Votes may be cast in favor of
or in opposition to the ballot proposition. Shares represented by a proxy as
to which there is a broker non-vote will not be counted toward the calculation
of a majority of votes and thus will have no effect on the outcome of the
voting. (A broker non-vote occurs when a nominee who holds shares for a
beneficial owner does not vote on a proposal because the nominee does not have
discretionary voting power and has not received voting instructions from the
beneficial owner.)
A Stockholder giving a proxy may revoke such proxy at any time before the
proxy is voted. A proxy may be revoked by filing with Linda J. Eckard,
Assistant Secretary of the Company at 5900 Princess Garden Parkway, Lanham,
Maryland 20706 either (i) a written notice of revocation, including by
telegram or facsimile, bearing a date later than the date of such proxy or
(ii) a later-dated proxy relating to the same shares. A Stockholder who gives
a proxy may also revoke such proxy by attending the Meeting and voting in
person (although mere attendance at the Meeting will not, in and of itself,
constitute a revocation of a proxy).
COSTS OF SOLICITATION
Proxies are being solicited by and on behalf of the Company, and the Company
will pay the costs of soliciting proxies. The Company has retained Georgeson
Shareholder Communications Inc. to aid in the solicitation of proxies and to
verify certain records. The Company will pay Georgeson Shareholder
Communications Inc. a fee of $13,000 as compensation for its services and will
reimburse it for its related out-of-pocket expenses. The Company will also
solicit proxies by mail, and the directors, officers and employees of the
Company may also solicit proxies by telephone, facsimile, telegram or in
person. Those persons will receive no additional compensation for these
services but will be reimbursed for reasonable out-of-pocket expenses. The
Company will bear the costs of preparing and mailing the proxy materials to
such persons as brokerage houses
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<PAGE>
and other custodians, nominees and fiduciaries, for their forwarding of the
proxy materials to the beneficial owners. Upon request, the Company will also
reimburse such brokerage houses, custodians, nominees and fiduciaries for
their reasonable expenses in sending the proxy materials to the beneficial
owners.
SHARES ENTITLED TO VOTE
The close of business on April 5, 2000 has been fixed as the Record Date
(the "Record Date") for determining the Stockholders entitled to notice of and
to vote at the Meeting. As of the Record Date, there were 22,272,622 shares of
Class A Common Stock issued and outstanding and entitled to vote, and
2,867,463 shares of Class B Common Stock (representing 28,674,630 votes)
issued and outstanding and entitled to vote. There are also 3,132,458 shares
of Class C Common Stock issued and outstanding, whose vote will be counted
only with respect to the proposed increase in the number of authorized shares
of Class C Common Stock and the proposed provisions permitting holders of
Class A Common Stock to convert such Class A Common Stock into Class D Non-
Voting Common Stock.
QUORUM
A quorum of Stockholders is necessary to take action at the Meeting. Each
share of Class A Common Stock entitles the holder thereof to one vote. Each
share of Class B Common Stock entitles the holder thereof to ten votes.
Accordingly a total of 50,947,252 votes may be cast at the Meeting. The
holders of shares of Common Stock representing a majority of all votes
entitled to be cast at the Meeting (25,473,627 votes), whether present in
person or represented by proxy at the Meeting, shall constitute a quorum. In
addition to the foregoing, the holders of a majority of each class of Common
Stock (including the Class C Common Stock) must be present in person or
represented by proxy at the Meeting in order for a quorum to be present for
purposes of considering the proposed increase in the number of authorized
shares of the respective class of Common Stock and the proposed provisions
permitting holders of Class A Common Stock to convert such Class A Common
Stock into Class D Non-Voting Common Stock. The inspectors of election
appointed for the Meeting will determine whether a quorum is present.
Abstentions, but not broker non-votes, are counted as present for purposes of
determining whether there is a quorum. In the event that a quorum is not
obtained at the Meeting, we expect that the Meeting will be adjourned or
postponed to solicit additional proxies.
If a quorum is not present, the holders of the shares present in person or
represented by proxy at the meeting and entitled to vote thereat shall have
the power, by the affirmative vote of the holders of a majority of such
shares, to adjourn the meeting to another time or place. Unless the
adjournment is for more than thirty days or unless a new record date is set
for the adjourned meeting, no notice of the adjourned meeting need be given to
any stockholder, provided that the time and place of the adjourned meeting is
announced at the meeting at which the adjournment was taken. At the adjourned
meeting, the Company may transact any business which might have been
transacted at the original meeting.
VOTE REQUIRED
A quorum being present at the meeting, a majority of all votes entitled to
be voted by all of the Company's outstanding shares of Common Stock will be
necessary for the approval of the Proposed Amendment. In addition to the
foregoing requirement, (i) pursuant to Delaware law, the increase of the
number of authorized shares of each class of Common Stock must be approved by
a majority vote of the holders of the respective class of Common Stock; (ii)
the addition of the provision permitting holders of Class A Common Stock to
convert such Class A Common Stock into Class D Non-Voting Common Stock must be
approved by a majority vote of the holders of each class of Common Stock; and
(iii) the deletion of the provision requiring approval of the holders of two-
thirds of the Class A Common Stock for amendments to Article VIII of the
Amended and Restated
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<PAGE>
Certificate of Incorporation requires the approval of the holders of two-
thirds of the Class A Common Stock. Abstentions will be counted as votes
against such proposal to amend the Amended and Restated Certificate of
Incorporation. Votes cast by proxy or in person at the Meeting will be
tabulated by the inspectors of election appointed for the Meeting.
VOTING SHARES COMMITTED
The Company has been advised by various members of management and the Board
who, in the aggregate, hold or otherwise have voting power with respect to
1,906,064 shares of Class A Common Stock and 2,861,843 shares of Class B
Common Stock (representing approximately 59.9% of the votes possible) that
they intend to vote such shares in favor of each of the proposals to be
presented for consideration and approval at the Meeting. In addition, the
Company has been advised by various members of management and the Board who,
in the aggregate, hold or otherwise have voting power with respect to
3,121,048 shares of Class C Common Stock (representing approximately 99.6% of
the outstanding shares of Class C Common Stock) that they intend to vote such
shares in favor of the proposal to be presented for consideration and approval
at the Meeting.
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of the Company's Common Stock as of March 13, 2000 by:
(a) each person (or group of affiliated persons) known by the Company to be
the beneficial owner of more than five percent of any class of its Common
Stock, (b) each of the five most highly compensated executive officers of the
Company, (c) each of the Company's directors, and (d) all executive officers
and directors as a group. The number of shares of each class of Common Stock
excludes the shares of any other class of Common Stock issuable upon
conversion of that class of Common Stock. Unless otherwise indicated in the
footnotes below, each stockholder possesses sole voting and investment power
with respect to the shares listed. Information with respect to the beneficial
ownership of shares has been provided by the stockholders. Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission.
<TABLE>
<CAPTION>
Class A Class B Class C(/1/) Percentage Percentage
------------------ ------------------ ------------------ of Total of Total
Number Percent Number Percent Number Percent Economic Voting
Name of Shares of Class of Shares of Class of Shares of Class Interest Power
---- --------- -------- --------- -------- --------- -------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine L.
Hughes(/2/)(/3/)....... 1,000 0.004% 851,536 29.7% 3,121,048 99.6% 14.10% 16.70%
Alfred C. Liggins,
III(/2/)(/4/).......... 38,036 0.2% 2,010,307 70.1% 3,121,048 99.6% 18.30% 39.50%
Scott R. Royster(/5/)... 51,376 0.2% -- -- -- -- 0.20% 0.10%
Linda J. Eckard(/6/).... 12,654 0.1% -- -- -- -- 0.04% 0.02%
Mary Catherine Sneed.... 230,922 1.0% -- -- -- -- 0.08% 0.50%
Terry L. Jones(/7/)..... 1,077,318 4.8% -- -- -- -- 3.80% 2.10%
Brian W. McNeill(/8/)... 492,258 2.2% -- -- -- -- 1.70% 1.10%
Larry D. Marcus......... 2,500 * -- -- -- -- * *
Janus Capital
Corporation............ 1,774,975 8.0% -- -- -- -- 5.80% 3.20%
FMR Corp................ 1,122,870 5.0% -- -- -- -- 4.00% 2.20%
Putnam Investments,
Inc.................... 2,096,619 9.4% -- -- -- -- 7.40% 4.10%
All Directors and Named
Executives as a group.. 1,906,064 8.6% 2,861,843 99.8% 3,121,048 99.6% 27.90% 59.90%
</TABLE>
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*Less than 1%
(/1/The)shares of Class C Common Stock are held by Hughes-Liggins Family
Partners, L.P., the limited partners of which are the Catherine L. Hughes
Revocable Trust, dated March 2, 1999 (of which Ms. Hughes is the trustee
and sole beneficiary), and the Alfred C. Liggins, III Revocable Trust,
dated March 2, 1999 (of which Mr. Liggins is the trustee and sole
beneficiary), and the general partner of which is Hughes-Liggins &
Company, L.L.C., the members of which are the Catherine L. Hughes
Revocable Trust, dated March 2, 1999, and the Alfred C. Liggins, III
Revocable Trust, dated March 2, 1999.
5
<PAGE>
(/2/The)shares of Class A Common Stock and Class B Common Stock are subject to
a voting agreement between Ms. Hughes and Mr. Liggins with respect to the
election of Radio One's directors.
(/3/The)shares of Class B Common Stock are held by the Catherine L. Hughes
Revocable Trust, dated March 2, 1999.
(/4/The)shares of Class B Common Stock are held by the Alfred C. Liggins, III
Revocable Trust, dated March 2, 1999.
(/5/Includes)6,992 shares of Class A Common Stock obtainable upon the exercise
of stock options exercisable within 60 days of March 13, 2000.
(/6/Includes)11,654 shares of Class A Common Stock obtainable upon the
exercise of stock options exercisable within 60 days of March 13, 2000.
(/7/Includes)49,557 shares of Class A Common Stock held by Mr. Jones, 300
shares of Class A Common Stock held by each of Mr. Jones' three daughters,
and 1,026,861 shares of Class A Common Stock held by Syncom Capital
Corporation. Mr. Jones is the President of Syncom Capital Corporation and
may be deemed to share beneficial ownership of shares of Class A Common
Stock held by Syncom Capital Corporation by virtue of his affiliation with
Syncom Capital Corporation. Mr. Jones disclaims beneficial ownership in
such shares.
(/8/Includes)14,217 shares of Class A Common Stock held by Mr. McNeill and
478,041 shares of Class A Common Stock held by Alta Subordinated Debt
Partners III, L.P. Mr. McNeill is a general partner of Alta Subordinated
Debt Partners III, L.P., and Mr. McNeill may be deemed to share beneficial
ownership of shares of Class A Common Stock held by Alta Subordinated Debt
Partners III, L.P. by virtue of his affiliation with Alta Subordinated
Debt Partners III, L.P. Mr. McNeill disclaims any beneficial ownership of
such shares.
NO APPRAISAL RIGHTS
Under the General Corporation Law of the State of Delaware, Stockholders of
the Company do not have appraisal rights in connection with the proposal upon
which a vote is scheduled to be taken at the Meeting.
6
<PAGE>
PROPOSED AMENDMENT OF THE AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION
ELIMINATION OF PREFERRED STOCK
The proposed Amended and Restated Certificate of Incorporation, if approved,
would eliminate the Company's currently existing 15% Series A Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "Series A
Preferred") and the Company's currently existing 15% Series B Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "Series B
Preferred").
The total number of authorized shares of the Company's Series A Preferred is
140,000 and the total number of authorized shares of the Company's Series B
Preferred is 150,000. Using the proceeds from the Company's initial public
offering on May 5, 1999, the Company repurchased all 84,843 shares of Series A
Preferred and all 124,467 shares of Series B Preferred that were then issued
and outstanding. There are no shares of either Series A Preferred or Series B
Preferred outstanding at this time.
The Board wishes to eliminate the Series A Preferred and Series B Preferred
in order to establish "blank check" Preferred Stock in their place. The Board
believes it is in the Company's best interest to replace the Series A
Preferred and Series B Preferred with "blank check" Preferred Stock because of
the promptness with which the latter can be issued and the flexibility with
which its terms can be set. A more thorough explanation of the advantages of
"blank check" Preferred Stock may be found in the discussion of the "blank
check" Preferred Stock below.
CREATION OF BLANK CHECK PREFERRED STOCK
The proposed Amended and Restated Certificate of Incorporation will create
1,000,000 authorized shares of "blank check" Preferred Stock. Section 4.2 of
the proposed Amended and Restated Certificate of Incorporation attached as
Exhibit "A" to this Proxy Statement contains provisions related to the "blank
check" Preferred Stock.
The term "blank check" refers to Preferred Stock, the creation and issuance
of which is authorized in advance by the Stockholders and the terms, rights
and features of which are determined by the Board of Directors of the Company
upon issuance. The authorization of such blank check Preferred Stock would
permit the Board to authorize and issue Preferred Stock from time to time in
one or more series.
Subject to the provisions of the Company's Amended and Restated Certificate
of Incorporation and the limitations prescribed by law, the Board would be
expressly authorized, at its discretion, to adopt resolutions to issue shares,
to fix the number of shares and to change the number of shares constituting
any series and to provide for or change the voting powers, designations,
preferences and relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof, including dividend rights
(including whether the dividends are cumulative), dividend rates, terms of
redemption (including sinking fund provisions), redemption prices, conversion
rights and liquidation preferences of the shares constituting any series of
the Preferred Stock, in each case without any further action or vote by the
Stockholders. The Board would be required to make any determination to issue
shares of Preferred Stock based on its judgment as to the best interests of
the stockholders of the Company. The Company has no immediate definitive plans
to issue any shares of Preferred Stock; therefore the terms, rights and
features of a Preferred Stock subject to this proposal cannot be stated or
predicted with certainty.
It is not possible to state the effects of the proposed amendment upon the
rights of holders of Common Stock until the Board determines the respective
rights of the holders of one or more series of Preferred Stock. However, the
issuance of shares of Preferred Stock pursuant to the Board of Directors'
authority described above may adversely affect the rights of the holders of
Common Stock. Specifically, the effects of such issuance of
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Preferred Stock could include (i) reduction of the amount otherwise available
for payment of dividends on Common Stock, if any, (ii) restrictions on
dividends on Common Stock, (iii) dilution of the voting power of Common Stock,
and (iv) restrictions on the rights of holders of Common Stock to share in the
Company's assets on liquidation until satisfaction of any liquidation
preference granted to the holders of such subsequently designated series of
Preferred Stock. For example, Preferred Stock issued by the Company may rank
prior to the Common Stock as to dividend rights, liquidation preferences or
both, may have full or limited voting rights, and may be convertible into
shares of Common Stock. Accordingly, the issuance of shares of Preferred Stock
could decrease the amount of earnings and assets allocable to or available for
distribution to holders of Common Stock and adversely affect the rights and
powers, including voting rights of the Common Stock, and may discourage bids
for the Common Stock or may otherwise adversely affect the market price of the
Common Stock.
The proposed amendment will provide the Company with increased financial
flexibility in meeting future capital requirements by providing another type
of security in addition to its Common Stock, as it will allow Preferred Stock
to be available for issuance from time to time and with such features as
determined by the Board for any proper corporate purpose. Such purposes could
include, without limitation, issuance for cash as a means of obtaining capital
for use by the Company, or issuance as part or all of the consideration
required to be paid by the Company for acquisitions of other businesses or
properties. On March 11, 2000, the Company entered into agreements to acquire
a total of 21 radio stations in three separate transactions for an aggregate
consideration of approximately $1.36 billion (the "Pending Acquisitions"). In
order to finance these or other potential acquisitions, the Company may issue
shares of one or more series of Preferred Stock . However, the Company
presently has no agreements or understandings with any person to effect any
such issuance, and the Company may never issue any Preferred Stock.
Any issuance of Preferred Stock with voting rights could, under certain
circumstances, have the effect of delaying or preventing a change in control
of the Company by increasing the number of outstanding shares entitled to vote
and by increasing the number of votes required to approve a change in control
of the Company. Shares of voting or convertible Preferred Stock could be
issued, or rights to purchase such shares could be issued, to render more
difficult or discourage an attempt to obtain control of the Company by means
of a tender offer, proxy contest, merger or otherwise. The ability of the
Board to issue such additional shares of Preferred Stock, with the rights and
preferences it deems advisable, could discourage an attempt by a party to
acquire control of the Company by tender offer or other means. Such issuances
could therefore deprive Stockholders of benefits that could result from such
an attempt, such as the realization of a premium over the market price for
their shares in a tender offer or the temporary increase in market price that
such an attempt could cause. Moreover, the issuance of such additional shares
of Preferred Stock to persons friendly to the Board could make it more
difficult to remove incumbent managers and directors from office even if such
change were to be favorable to Stockholders generally.
While the amendment may have anti-takeover ramifications, the Board believes
that financial flexibility offered by the amendment outweighs any
disadvantages. To the extent that the amendment may have anti-takeover
effects, the amendment may encourage persons seeking to acquire the Company to
negotiate directly with the Board, enabling the Board to consider the proposed
transaction in a manner that best serves the Stockholders' interests.
CREATION OF CLASS D NON-VOTING COMMON STOCK
The proposed Amended and Restated Certificate of Incorporation will create a
new class of capital stock, to be designated Class D Common Stock par value
$.001 per share (the "Class D Non-Voting Common Stock") of which 100,000,000
shares will be authorized. Articles IV and VII of the proposed Amended and
Restated Certificate of Incorporation attached as Exhibit "A" to this Proxy
Statement contain provisions related to the Class D Non-Voting Common Stock.
Although the Board of Directors has no immediate definitive plans to issue
shares of Class D Non-Voting Common Stock, it believes it is desirable to have
shares available for various general corporate purposes. The Board is seeking
authorization of the Class D Non-Voting Common Stock for such general
corporate purposes, which include, without limitation, stock splits and stock
dividends, raising capital in order to finance, among
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other possible uses, the Pending Acquisitions, providing equity incentives to
employees, directors or consultants, conducting equity financings, and
expanding the Company's business by using its capital stock as currency to
acquire other businesses or the assets of other businesses, if appropriate
opportunities arise. With regard to raising capital, the Company may, in the
near term, seek to raise additional capital by selling and issuing shares of
Class D Non-Voting Common Stock as dictated by prevailing market conditions or
the Company's capital needs, and the Board of Directors believes it prudent to
have shares available for such issuances on an as-needed basis, without the
delay inherent in seeking Stockholder approval for a specific transaction.
The new Class D Non-Voting Common Stock will be non-voting and will not be
convertible into shares of any other class of the Company's securities and
thus will not dilute the voting power of any other class of stock. Except for
the absence of voting and conversion rights, the holders of Class D Non-Voting
Common Stock will be entitled to the same rights, privileges, benefits and
notices as the holders of all other classes of Common Stock. The Company
anticipates that it may seek to register the shares of Class D Non-Voting
Common Stock to be traded on the Nasdaq Stock Market's National Market, but
does not warrant that any application for such registration will be sought by
the Company or will be accepted by the Nasdaq Stock Market's National Market.
The Board of Directors has not irrevocably committed the Company to issue
shares of Class D Non-Voting Common Stock for any of the foregoing purposes.
However, the Company, in consultation with its financial advisors, constantly
monitors conditions in the equity capital markets, and, assuming that the
proposal to authorize shares of Class D Non-Voting Common Stock is approved
and that the then prevailing market conditions are favorable, the Company may
shortly after the Meeting seek to raise additional capital through the
issuance of Class D Non-Voting Common Stock. Furthermore, it is likely that
the Company will in the ordinary course of business continue to make grants
under its 1999 Stock Option and Restricted Stock Grant Plan, including grants
of options to purchase Class D Non-Voting Common Stock. Finally, the Company
is also considering whether, in light of trading prices for the Company's
Class A Common Stock, it would be appropriate in the near term to effect a
stock split by means of a stock dividend consisting of shares of Class D Non-
Voting Common Stock. Except as described above, the Company has no plans or
proposals with respect to issuances of shares of Class D Non-Voting Common
Stock that may be authorized at the Meeting.
INCREASE IN AUTHORIZED COMMON STOCK
The proposed Amended and Restated Certificate of Incorporation, if approved,
would increase the number of shares authorized of the Company's Class A Common
Stock, par value $.001, ("Class A Common Stock"), Class B Common Stock, par
value $.001, ("Class B Common Stock") and Class C Common Stock, par value
$.001, ("Class C Common Stock"). Section 4.1 of the proposed Amended and
Restated Certificate of Incorporation attached as Exhibit "A" to this Proxy
Statement contains the provisions related to the increase in the number of
authorized shares of Class A Common Stock, Class B Common Stock and Class C
Common Stock.
As of April 5, 2000, the total number of shares of Class A Common Stock was
30,000,000 shares authorized and 22,272,622 shares issued and outstanding, the
total number of shares of Class B Common Stock, was 30,000,000 shares
authorized and 2,867,463 shares issued and outstanding, and the total number
of shares of Class C Common Stock, was 30,000,000 shares authorized and
3,132,458 shares issued and outstanding. The Board on March 23, 2000 adopted a
resolution proposing that the Amended and Restated Certificate of
Incorporation be amended to increase the total number of authorized shares of
Class A Common Stock to 150,000,000, to increase the total number of
authorized shares of Class B Common Stock to 150,000,000 and to increase the
total number of authorized shares of Class C Common Stock to 150,000,000.
The Board wishes to increase the number of authorized shares of the
Company's Common Stock in order to afford it greater flexibility and to ensure
that it has additional shares available for future issuance from time to time
as approved by the Board for any proper corporate purpose, including equity
financings, mergers,
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acquisitions of other businesses, future stock dividends or splits, and
issuances under stock option and other incentive programs. In particular, the
ability to conduct a stock dividend or split would enhance the Company's
ability to maintain a moderate stock price, thereby broadening the Company's
shareholder base.
The additional shares of Common Stock to be authorized by adoption of the
amendment would have rights identical to those currently outstanding shares of
the same class. One of the effects of the proposed amendment, if adopted,
might be to enable the Board of Directors to render it more difficult to, or
discourage an attempt to, obtain control of the Company by means of a merger,
tender offer, proxy contest or otherwise, and thereby protect the continuity
of present management. The Board of Directors would, unless prohibited by
applicable law, have additional shares of Common Stock available to effect
transactions (including private placements) in which the number of the
Company's outstanding shares would be increased and would thereby dilute the
interest of any party attempting to gain control of the Company. Such action
could discourage an acquisition of the Company which Stockholders might view
as desirable.
Although the Company is currently contemplating the issuance to holders of
all outstanding shares of Common Stock, in the form of a stock dividend, of
one share of the newly created Class D Common Stock for each share of Common
Stock they own, Stockholders do not have any preemptive or similar rights to
subscribe for or purchase any additional shares of Common Stock that may be
issued in the future, and therefore, future issuances of Common Stock may,
depending on the circumstances, have a dilutive effect on the earnings per
share, rights upon liquidation and other interests of the existing
stockholders.
To the extent required by Delaware law and the Amended and Restated
Certificate of Incorporation, Stockholder approval will be solicited in the
event that shares of Common Stock are to be issued in connection with a merger
or acquisition. The Company, in compliance with the Nasdaq Stock Market's
National Market listing requirements, will also solicit Stockholder approval
for any transactions that may trigger such approval. In general, however, and
subject to any applicable Nasdaq limitations, the Board may issue the
additional authorized shares for such purposes without Stockholder approval.
CONVERSION OF CLASS A COMMON STOCK
INTO CLASS D NON-VOTING COMMON STOCK
The proposed Amended and Restated Certificate of Incorporation, if approved,
would permit holders of shares of Class A Common Stock to convert those shares
into an equal number of shares of Class D Non-Voting Common Stock. Section
4.3(d)(i) of the proposed Amended and Restated Certificate of Incorporation
attached as Exhibit A to this Proxy Statement contains the provisions related
to the conversion of Class A Common Stock into Class D Non-Voting Common
Stock.
The Board believes that it could be beneficial for holders of shares of
Class A Common Stock to have the ability to convert such shares into shares of
Class D Non-Voting Common Stock if, for example, the "public float" of the
Class D Non-Voting Common Stock (i.e., the number of shares traded on the
Nasdaq Stock Market's National Market or other securities exchange) were to be
greater than that of the Class A Common Stock, thereby providing greater
liquidity to holders of Class D Non-Voting Common Stock. Holders of Class A
Common Stock are cautioned, however, that shares of Class D Non-Voting Common
Stock will not have voting rights and will not be convertible into shares of
any other class of the Company's common stock. A more complete description of
the Class D Non-Voting Common Stock may be found under the caption "Creation
of Class D Non-Voting Common Stock," above.
ADDITIONAL CHANGES TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
The proposed Amended and Restated Certificate of Incorporation, if approved,
would eliminate certain provisions restricting the ability of persons subject
to Regulation Y, promulgated by the Federal Reserve Bank
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under the Bank Holding Company Act, to hold more than 5% of the Class A Common
Stock. Because the Class A Common Stock is listed and traded on the Nasdaq
Stock Market's National Market, any person subject to Regulation Y that
acquires 5% or more of the Class A Common Stock can reduce its holding below
that level through open market transactions. In addition, because persons
subject to Regulation Y restrictions may now exempt themselves from Regulation
Y's applicability by becoming Financial Holding Companies, the regulatory
rationale for such restrictions on ownership of Class A Common Stock no longer
applies. The Board therefore believes that the provisions proposed to be
eliminated, which were adopted before the Class A Common Stock was a publicly-
traded security, are no longer necessary.
The proposed Amended and Restated Certificate of Incorporation, if approved,
would eliminate the requirement that amendments to Article VIII, which
provides for indemnification by the Company of its officers and directors, be
approved by the holders of two-thirds of the Class A Common Stock. The Board
believes that amendments to Article VIII should be subject to approval by the
vote of a majority of the votes cast by all Stockholders entitled to vote, as
is the case with most other questions presented to the Stockholders.
REQUIRED VOTE
A quorum being present, the adoption of the foregoing proposed amendments to
the Amended and Restated Certificate of Incorporation will require the
affirmative vote of a majority of the votes cast by all Stockholders entitled
to vote. In addition, (i) the increase in the number of authorized shares of
each class of Common Stock will require the affirmative vote of a majority of
the shares of the respective class, (ii) the addition of the provisions
permitting holders of Class A Common Stock to convert such Class A Common
Stock into Class D Non-Voting Common Stock will require the approval of the
holders of a majority of each class of the Common Stock, and (iii) the
elimination of the requirement that amendments to Article VIII be approved by
the holders of two-thirds of the Class A Common Stock will require the
approval of the holders of two-thirds of the Class A Common Stock. If the
proposed amendments to the Amended and Restated Certificate of Incorporation
receive the affirmative vote of a majority of the votes cast by all
Stockholders entitled to vote, but the vote required to increase the
authorized number of shares of any class or classes of Common Stock is not
received, or the vote required to permit the conversion of Class A Common
Stock into Class D Non-Voting Common Stock is not received, or the vote
required to change the vote needed to approve amendments to Article VIII is
not received, then the proposed amendments to the Amended and Restated
Certificate of Incorporation, other than the amendments relating to the
increase in the number of authorized shares of the relevant class of Common
Stock, the convertibility of Class A Common Stock into Class D Non-Voting
Common Stock, and/or future amendments to Article VIII, as the case may be,
shall be deemed to have been approved by the Stockholders.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE TO
APPROVE THE PROPOSED AMENDMENT TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION.
STOCKHOLDER PROPOSALS FOR NEXT ANNUAL MEETING
The Company will hold its next annual meeting on September 30, 2000. To be
considered for inclusion in the proxy materials for the annual meeting,
stockholder proposals to be presented at such annual meeting must be submitted
in writing and received by the Company no later than June 30, 2000. Other
proposals that are not included in the proxy materials will be considered
timely and may be eligible for presentation at the Company's annual meeting on
September 30, 2000 if they are received by the Company in the form of a
written notice no later than June 30, 2000.
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OTHER BUSINESS
The Board of Directors does not know of any business to be brought before
the Meeting other than the matters described in the Notice of Special Meeting.
However, if a Stockholder properly brings any other matters for action, each
person named in the accompanying proxy intends to vote the proxy in accordance
with his or her judgment on such matters.
By Order of the Board of Directors,
/s/ Linda J. Eckard
Linda J. Eckard
Assistant Secretary
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Exhibit A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
RADIO ONE, INC.
This Amended and Restated Certificate of Incorporation of Radio One, Inc.,
was duly adopted in accordance with the provisions of Sections 141, 242 and
245 of the Delaware General Corporation Law. The original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware
on July 15, 1996, and an Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on May 5, 1999. The
text of the Corporation's Certificate of Incorporation as heretofore amended
is hereby restated and further amended to read in its entirety as follows:
ARTICLE I
Name
The name of the corporation is Radio One, Inc. (hereinafter referred to as
the "Corporation").
ARTICLE II
Registered Office
The post office address of the registered office of the Corporation in the
State of Delaware is 9 East Loockerman Street, Dover, Kent County, Delaware
19901. The name of the registered agent of the Corporation at that address is
National Registered Agents, Inc.
ARTICLE III
Purpose
The purpose of the Corporation is to acquire, operate, and maintain radio
stations and television stations and to engage in any other lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
ARTICLE IV
Capital Stock
Section 4.1. General.
(a) Authorized Shares. The total number of shares of capital stock which the
Corporation has authority to issue is 601,000,000 shares, consisting of: (i)
150,000,000 shares of Class A Common Stock, par value $.001 per share (the
"Class A Common"), (ii) 150,000,000 shares of Class B Common Stock, par value
$.001 per share (the "Class B Common"), (iii) 150,000,000 shares of Class C
Common Stock, par value $.001 per share (the "Class C Common"), (iv)
150,000,000 shares of Class D Common Stock (the "Class D Common" and together
with the Class A Common, the Class B Common, and the Class C Common, the
"Common Stock") and (v) 1,000,000 shares of Preferred Stock. The Preferred
Stock and the Common Stock are hereinafter sometimes collectively referred to
as "Capital Stock." Certain capitalized terms used herein are defined in
Section 4.7(c) of ARTICLE IV.
<PAGE>
Section 4.2. Preferred Stock. The Board of Directors of the Corporation (the
"Board") is hereby authorized, by resolution or resolutions from time to time
adopted and subject to the limitations provided by law, to establish and
designate one or more series of preferred stock (the "Preferred Stock"), and
to fix the designations, powers, preferences, rights, qualifications,
limitations or restrictions thereof and the variations and relative rights,
preferences and limitations as between series. The authority of the Board with
respect to each series of Preferred Stock shall include, but shall not be
limited to, determination of the following:
(a) the designation of such series, which may be by distinguishing number
or letter;
(b) the number of shares initially constituting such series;
(c) the increase, and the decrease to a number not less than the number
of the then outstanding shares of such series, of the number of shares
constituting such series theretofore fixed;
(d) the rate or rates, and the conditions upon and the times at which
dividends on the shares of such series shall be paid, the preference or
relation which such dividends shall bear to the dividends payable on any
other class or classes or on any other series of stock of the Corporation,
and whether or not such dividends shall be cumulative, and, if such
dividends shall be cumulative, the date or dates from and after which they
shall accumulate;
(e) whether or not the shares of such series shall be redeemable and, if
such shares shall be redeemable, the terms and conditions of such
redemption, including, but not limited to, the date or dates upon or after
which such shares shall be redeemable and the amount per share which shall
be payable upon such redemption, which amount may vary under different
conditions and at different redemption dates;
(f) the rights to which the holders of the shares of such series shall be
entitled upon the voluntary or involuntary liquidation, dissolution or
winding up of, or upon any distribution of the assets of, the Corporation,
which rights may be different in the case of a voluntary liquidation,
dissolution or winding up than in the case of such an involuntary event;
(g) whether or not the shares of such series shall have voting rights, in
addition to the voting rights provided by law and, if such shares shall
have such voting rights, the terms and conditions thereof, including, but
not limited to, the right of the holders of such shares to vote as a
separate class either alone or with the holders of shares of one or more
other series of Preferred Stock and the right to have more than one vote
per share;
(h) whether or not a sinking or a purchase fund shall be provided for the
redemption or purchase of the shares of such series and, if such a sinking
fund or purchase fund shall be provided, the terms and conditions thereof;
(i) whether or not the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or any other
series of the same or any other class or classes of stock or any other
security of the Corporation or any other entity and, if provision be made
for conversion or exchange, the terms and conditions of conversion or
exchange, including, but not limited to, any provision for the adjustment
of the conversion or exchange rate or price; and
(j) any other relative rights, preferences and limitations.
Section 4.3. Common Stock. Except as otherwise provided in Section 4.3 of
this ARTICLE IV or as otherwise required by applicable law, all shares of
Class A Common, Class B Common, Class C Common and Class D Common shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges and shall be subject to the same qualifications,
limitations and restrictions.
(a) Voting Rights. At every meeting of the stockholders, except as
specifically otherwise required by law, the holders of Class A Common shall
be entitled to one vote per share, and the holders of Class B Common shall
be entitled to ten votes per share, on all matters presented for a vote of
the stockholders of the Corporation, provided that, at every meeting of the
stockholders called for the election of directors the
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holders of Class A Common, voting separately as a class, shall be entitled
to elect two of the directors to be elected at such meeting. The holders of
Class A Common and Class B Common, voting together as a class, shall be
entitled to elect the remaining number of directors to be elected at such
meeting. Directors elected by the holders of a class or classes of Common
Stock may be removed, with or without cause, only by a majority vote of the
holders of the shares of such class or classes of Common Stock then
outstanding. If, during the interval between annual meetings of
stockholders for the election of directors, the number of directors who
have been elected by the holders of any class or classes of Common Stock
shall, by reason of resignation, death or removal, be reduced, the vacancy
or vacancies in the directors elected by the holders of such class or
classes of Common Stock may be filled by a majority vote of the remaining
directors elected by the holders of such class or classes of Common Stock
then in office. Any director elected to fill any such vacancy by the
remaining directors then in office may be removed from office by a majority
vote of the holders of the shares of such class or classes of Common Stock
then outstanding. Except as otherwise required by law, the holders of the
Class A Common and the holders of the Class B Common shall in all matters
not specified in this Section 4.3(a) vote together as a single class,
provided that the holders of shares of the Class A Common shall be entitled
to one (1) vote per share and the holders of shares of the Class B Common
shall be entitled to ten (10) votes per share. Except to the extent
provided in ARTICLE VII of this Amended and Restated Certificate of
Incorporation or as required by applicable law, the holders of Class C
Common and Class D Common shall have no right to vote on any matter
presented for a vote of the stockholders of the Corporation (including,
without limitation, the election or removal of directors of the
Corporation), and Class C Common and Class D Common shall not be included
in determining the number of shares voting or entitled to vote on such
matters. The Board of Directors of the Corporation shall have concurrent
power with the holders of Class A Common and Class B Common to adopt, amend
or repeal the Bylaws of the Corporation. A consolidation or merger, or the
sale, lease, exchange, mortgage, pledge, or other disposition of all, or
substantially all, of the property or assets of the Corporation, if not
made in the usual and regular course of its business, shall require a
resolution adopted by a majority of the Board of Directors of the
Corporation and the authorization of an affirmative vote of at least two-
thirds of the outstanding shares of Class A Common.
(b) Dividends. As and when dividends are declared or paid with respect to
shares of Common Stock, whether in cash, property or securities of the
Corporation, the holders of Class A Common, the holders of Class B Common,
the holders of Class C Common and the holders of Class D Common shall be
entitled to receive such dividends pro rata at the same rate per share for
each such class of Common Stock; provided that if such dividends are
declared or paid in shares of Common Stock, such dividends may be paid only
(i) in shares of Class D Common, or (ii) if holders of any class of Common
Stock are to receive payment in shares of any class of Common Stock other
than Class D Common, then holders of shares of each class of Common Stock
must receive payment only in shares of such respective class of Common
Stock. The rights of the holders of Common Stock to receive dividends are
subject to the provisions of the Preferred Stock.
(c) Reservation. The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock: (i)
Class A Common in a quantity sufficient to provide for the conversion of
all outstanding shares of the Class B Common and Class C Common into Class
A Common; and (ii) Class C Common in a quantity sufficient to provide for
the conversion of all outstanding shares of the Class A Common into Class C
Common.
(d) Conversion of Common Stock.
(i) Conversion of Class A Common. Subject to the terms and conditions
stated herein, the holder of any shares of Class A Common shall have
the right at any time, at such holder's option, to convert all or a
portion of the shares of Class A Common so held into the same number of
shares of Class C Common or Class D Common. Such right of conversion
shall be exercised (A) by giving written notice (the "Notice") to the
Corporation at least ten (10) days prior to the Conversion Date (as
defined below) specified therein that the holder elects to convert a
stated number of shares of Class A Common into shares of Class C Common
or Class D Common on the date specified in such Notice (the "Conversion
Date") and (B) by surrendering the certificate or certificates
representing at least the number of shares
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of Class A Common to be converted to the Corporation at its principal
office at any time during the usual business hours on or before the
Conversion Date, duly endorsed in blank by the owner of the certificate
so surrendered, together with a statement of the name or names (with
addresses) of the Person or Persons in whose name or names the
certificate or certificates for shares issued on conversion shall be
registered. Shares of Class A Common that have been converted hereunder
shall not be canceled but shall remain as treasury shares unless
retired by resolution of the Board of Directors.
(ii) Conversion of Class B Common. Each share of Class B Common shall
also be convertible, at the option of the holder thereof, into one
fully paid and nonassessable share of Class A Common. The procedures
for conversion of Class A Common into Class C Common or Class D Common,
as set forth in paragraph (i) of this Section 4.3(d), shall also be
applicable to the conversion of Class B Common into Class A Common.
Shares of Class B Common that have been converted hereunder shall not
be canceled but shall remain as treasury shares unless retired by
resolution of the Board of Directors.
(iii) Class B Stockholders. Class B Stockholders (as hereinafter
defined) and Class B Permitted Transferees (as hereinafter defined) may
exercise their respective rights as a holder of shares of Class C
Common to convert such shares into shares of Class A Common, or
otherwise acquire shares of Class A Common, only in the event that: (A)
the Corporation shall merge or consolidate with or into, or otherwise
acquire, any other Person and such Class B Stockholder or Class B
Permitted Transferee receives shares of Class A Common in exchange for
such Class B Stockholder's or Class B Permitted Transferee's interest
in such other Person; (B) such Class B Stockholder or Class B Permitted
Transferee desires to sell shares of Class A Common into which all or
part of its shares of Class C Common are to be converted in connection
with any proposed purchase of Class A Common by another Person (other
than a Class B Stockholder or a Class B Permitted Transferee); or (C)
such Class B Stockholder or Class B Permitted Transferee intends to
sell shares of Class A Common into which all or part of its shares of
Class C Common are to be converted pursuant to a registration statement
which has been declared effective.
(iv) Conversion of Class C Common. Each share of Class C Common shall
also be convertible, at the option of the holder thereof, into one
fully paid and nonassessable share of Class A Common. The procedures
for conversion of Class A Common into Class C Common or Class D Common,
as set forth in paragraph (i) of this Section 4.3(d), shall also be
applicable to the conversion of Class C Common into Class A Common.
Shares of Class C Common that have been converted hereunder shall not
be canceled but shall remain as treasury shares unless retired by
resolution of the Board of Directors.
(v) Surrender of Certificates. Subject to the other provisions of
this Section 4.3 and of ARTICLE IX of this Amended and Restated
Certificate of Incorporation, promptly after (A) the Conversion Date
and (B) the surrender of such certificate or certificates representing
the share or shares of Class A Common, Class B Common or Class C Common
to be converted, the Corporation shall issue and deliver, or cause to
be issued and delivered, to the holder requesting conversion,
registered in such name or names as such holder may direct, a
certificate or certificates for the number of shares of the class of
Common Stock issuable upon the conversion of such share or shares,
together with a certificate or certificates evidencing any balance of
the shares of the class surrendered to the Corporation but not then
being converted. To the extent permitted by law, such conversion shall
be deemed to have been effected as of the close of business on the
later of the Conversion Date or the date upon which the Corporation
shall have received the certificate or certificates representing the
shares to be converted, and at such time the rights of the holder of
such share or shares as such holder shall cease, and the person or
persons in whose name or names any certificate or certificates for
shares shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of such shares of Class A
Common, Class C Common or Class D Common, as the case may be.
(e) Listing. If the shares of Common Stock required to be reserved for
the purpose of conversion hereunder require listing on any national
securities exchange, before such shares are issued upon conversion,
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the Corporation will, at its expense and as expeditiously as possible, use
its commercially reasonable best efforts to cause such shares to be listed
or duly approved for listing on such national securities exchange.
(f) No Charge. The issuance of certificates representing Common Stock
upon conversion of Class A Common, Class B Common or Class C Common, as
hereinabove set forth shall be made without charge or any expense or
issuance tax in respect thereof; provided, however, that the Corporation
shall not be required to pay any taxes which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the shares converted.
(g) Transfer of Class B Common.
(i) A Beneficial Owner (as hereinafter defined) of shares of Class B
Common (herein referred to as a "Class B Stockholder") may transfer,
directly or indirectly, Beneficial Ownership (as hereinafter defined)
of shares of Class B Common, whether by sale, assignment, gift or
otherwise, only to a Class B Permitted Transferee (as hereinafter
defined) and no Class B Stockholder may otherwise transfer Beneficial
Ownership of any shares of Class B Common. In the event of any
attempted transfer of the Beneficial Ownership of any shares of Class B
Common in violation of the limitation provided in the preceding
sentence, the shares of Class B Common with respect to which the
transfer of such Beneficial Ownership has been attempted shall be
deemed to have been converted automatically, without further deed or
action by or on behalf of any person, into shares of Class A Common. A
"Class B Permitted Transferee" shall be, if the Class B Stockholder is
an individual:
(A) the estate of the Class B Stockholder or any legatee, heir or
distributees thereof;
(B) the spouse or former spouse of the Class B Stockholder;
(C) any parent or grandparent and any lineal descendant (including
any adopted child) of any parent or grandparent of the Class B
Stockholder or of the Class B Stockholder's spouse or former spouse;
(D) any guardian or custodian (including a custodian for purposes
of the Uniform Gift to Minors Act or Uniform Transfers to Minors
Act) for, or any executor, administrator, conservator and/or other
legal representative of, the Class B Stockholder and/or any Class B
Permitted Transferee or Class B Permitted Transferees thereof;
(E) a trust (including a voting trust), and any savings or
retirement account, such as an individual retirement account for
purposes of federal income tax laws, whether or not involving a
trust, principally for the benefit of such Class B Stockholder
and/or any Class B Permitted Transferee or Class B Permitted
Transferees thereof, including any trust in respect of which such
Class B Stockholder and/or any Class B Permitted Transferee or Class
B Permitted Transferees thereof has any general or special power of
appointment or general or special non-testamentary power or special
testamentary power of appointment limited to any Class B Permitted
Transferee or Class B Permitted Transferees;
(F) any corporation, partnership or other business entity if
Substantial Beneficial Ownership thereof is held by such Class B
Stockholder and/or any Class B Permitted Transferee or Class B
Permitted Transferees thereof; provided, however, that if such Class
B Stockholder, and all Class B Permitted Transferees thereof, cease,
for whatever reason, to hold Substantial Beneficial Ownership of
such corporation, partnership or other business entity, then any and
all shares of Class B Common that such corporation, partnership or
other business entity is the Beneficial Owner of shall be deemed to
be converted automatically, without further deed or action by or on
behalf of any person, into shares of Class A Common;
(G) any Founding Investor and/or any Class B Permitted Transferee
or Class B Permitted Transferees of a Founding Investor; and
(H) the Corporation.
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A "Class B Permitted Transferee" shall be, if the Class B Stockholder
is a corporation, partnership or other business entity:
(1) any employee benefit plan, or trust thereunder or therefor,
sponsored by the Class B Stockholder;
(2) any trust (including any voting or liquidating trust)
principally for the benefit of the Class B Stockholder and/or any
Class B Permitted Transferee or Class B Permitted Transferees
thereof;
(3) any corporation, partnership or other business entity if
Substantial Beneficial Ownership thereof is held by such Class B
Stockholder and/or any Class B Permitted Transferee or Class B
Permitted Transferees thereof; provided, however, that if such Class
B Stockholder, and all Class B Permitted Transferees thereof, cease,
for whatever reason, to hold Substantial Beneficial Ownership of
such corporation, partnership or other business entity, then any and
all shares of Class B Common that such corporation, partnership or
other business entity is the Beneficial Owner of shall be deemed to
be converted automatically, without further deed or action by or on
behalf of any person, into shares of Class A Common;
(4) the stockholders of the corporation, partners of the
partnership or other owners of equity interests in any other
business entity, who receive such shares, by way of dividend or
distribution (upon dissolution, liquidation or otherwise), provided
that such transfer will not result in Beneficial Ownership of any of
such shares by any person who did not have the power to control such
corporation, partnership or business entity at the time such
corporation, partnership or business entity first acquired
Beneficial Ownership of such shares of Class B Common (other than by
any person who qualifies as a Class B Permitted Transferee pursuant
to any other provision of this paragraph (i) of this Section
4.3(g));
(5) the Corporation; and
(6) any Founding Investor and/or any Class B Permitted Transferee
or Class B Permitted Transferees of a Founding Investor.
(ii) Any person who holds shares of Class B Common for the Beneficial
Ownership of another, including (A) any broker or dealer in securities;
(B) any clearing house; (C) any bank, trust company, savings and loan
association or other financial institution; (D) any other nominee; and
(E) any savings plan or account or related trust, such as an individual
retirement account, principally for the benefit of any individual, may
transfer such shares to the person or persons for whose benefit it
holds such shares. Notwithstanding anything to the contrary set forth
herein, any holder of Class B Common may pledge such shares to a
pledgee pursuant to a bona fide pledge of such shares as collateral
security for indebtedness due to the pledgee, provided that such shares
may not be transferred to or registered in the name of the pledgee
unless such pledgee is a Class B Permitted Transferee. In the event of
foreclosure or other similar action by the pledgee, such pledged shares
shall automatically, without any act or deed on the part of the
Corporation or any other person, be converted into shares of Class A
Common unless within five business days after such foreclosure or
similar event such pledged shares are returned to the pledgor or
transferred to a Class B Permitted Transferee. The foregoing provisions
of this paragraph shall not be deemed to restrict or prevent any
transfer of such shares by operation of law upon incompetence, death,
dissolution or bankruptcy of any Class B Stockholder or any provision
of law providing for, or judicial order of, forfeiture, seizure or
impoundment.
(iii) Any transferee of shares of Class B Common pursuant to a
transfer made in violation of paragraphs (i) and (ii) of this Section
4.3(g) shall have no rights as a stockholder of the Corporation and no
other rights against or with respect to the Corporation except the
right to receive, in accordance with paragraph (ii) of Section 4.3(d)
or paragraphs (i) and (ii) of this Section 4.3(g), as applicable,
shares of Class A Common upon the conversion of such transferred
shares. Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation, the Corporation shall, to the
full extent permitted by law, be entitled to issue shares of Class B
Common to any person from time to time.
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(iv) The Corporation and any transfer agent of Class B Common may as
a condition to the transfer or the registration of any transfer of
shares of Class B Common permitted by paragraphs (i) and (ii) of this
Section 4.3(g) require the furnishing of such affidavits or other proof
as they deem necessary to establish that such transferee is a Class B
Permitted Transferee.
(v) For purposes of paragraph (i) of this Section 4.3(g): (A) the
term "Beneficial Ownership" in respect of shares of Class B Common
shall mean possession of the power and authority, either singly or
jointly with another, to vote or dispose of or to direct the voting or
disposition of such shares and the term "Beneficial Owner" in respect
of shares of Class B Common shall mean the person or persons who
possess such power and authority; and (B) the term "Substantial
Beneficial Ownership" in respect of any corporation, partnership or
other business entity shall mean possession of the power and authority,
either singly or jointly with another, to vote or dispose of or to
direct the voting or disposition of at least 80% of each class of
equity ownership interest in such corporation, partnership or other
business entity.
Section 4.4. No Interference. Except as otherwise provided in ARTICLE IX of
this Amended and Restated Certificate of Incorporation, the Corporation will
not close its books against the transfer of any share of Common Stock or of
any of the shares of Common Stock issued or issuable upon the conversion of
such shares of Common Stock in any manner which interferes with the timely
conversion of any of such shares.
Section 4.5. Mergers, Consolidations. In the case of a merger or
consolidation which reclassifies or changes the shares of Common Stock, or in
the case of the consolidation or merger of the Corporation with or into
another corporation or corporations or the transfer of all or substantially
all of the assets of the Corporation to another corporation or corporations,
each share of each class of Common Stock shall thereafter be convertible into
the greatest number or amount of shares of stock or other securities or
property to which a holder of a share of the class of Common Stock entitled to
receive the greatest number or amount of such stock or other securities or
property would have been entitled upon such reclassification, change,
consolidation, merger or transfer, and, in any such case, appropriate
adjustment (as determined in good faith by the Corporation's Board of
Directors) shall be made in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of each
class of Common Stock to the end that the provisions set forth herein shall
thereafter be applicable, as nearly as reasonably may be practicable, in
relation to any shares of stock or other securities on property thereafter
deliverable upon the conversion of shares of each class of Common Stock. In
case of any such merger or consolidation, the resulting or surviving
corporation (if not the Corporation) shall expressly assume the obligation to
deliver, upon conversion of each class of Common Stock, such stock or other
securities or property as the holders of the each class of Common Stock
remaining outstanding shall be entitled to receive pursuant to the provisions
hereof, and to make provisions for the protection of the conversion rights
provided for in this ARTICLE IV.
Section 4.6. Liquidation, Dissolution or Winding Up. Subject to the
provisions of the Preferred Stock, in the event of any Liquidation of the
Corporation, all remaining assets of the Corporation shall be distributed to
holders of the Common Stock pro rata at the same rate per share of each class
of Common Stock according to their respective holdings of shares of the Common
Stock.
Section 4.7. Miscellaneous. Subject to the provisions of ARTICLE IX of this
Amended and Restated Certificate of Incorporation:
(a) Registration of Transfer. The Corporation shall keep at its principal
office a register for the registration of Capital Stock. Upon the surrender
of any certificate representing Capital Stock at such place, the
Corporation shall, at the request of the record holder of such certificate,
execute and deliver (at the Corporation's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number
of shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such
number of shares as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to the surrendered
certificate, and dividends shall
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accrue on the Capital Stock represented by such new certificate from the
date to which dividends have been fully paid on such Capital Stock
represented by the surrendered certificate. The issuance of new
certificates shall be made without charge to the original holders of the
surrendered certificates for any issuance tax in respect thereof or other
cost incurred by the Corporation in connection with such issuance.
(b) Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be satisfactory)
of the ownership and the loss, theft, destruction or mutilation of any
certificate evidencing shares of any class or series of Capital Stock, and
in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Corporation (provided that if the
holder is a financial institution or other institutional investor its own
agreement shall be satisfactory), or, in the case of any such mutilation
upon surrender of such certificate, the Corporation shall (at its expense)
execute and deliver in lieu of such certificate a new certificate of like
kind representing the number of shares of such class or series represented
by such lost, stolen, destroyed or mutilated certificate and dated the date
of such lost, stolen, destroyed or mutilated certificate, and dividends
shall accrue on the Capital Stock represented by such new certificate from
the date to which dividends have been fully paid on such lost, stolen,
destroyed or mutilated certificate.
(c) Definitions. The following terms shall have the following meanings:
"Advance of Expenses" has the meaning set forth in Section 8.2.
"Beneficial Ownership" has the meaning set forth in Section
4.3(g)(v).
"Capital Stock" has the meaning set forth in Section 4.1.
"Class A Common" has the meaning set forth in Section 4.1.
"Class B Common" has the meaning set forth in Section 4.1.
"Class B Permitted Transferee" has the meaning set forth in Section
4.3(g).
"Class B Stockholder" has the meaning set forth in Section 4.3(g).
"Class C Common" has the meaning set forth in Section 4.1.
"Class D Common" has the meaning set forth in Section 4.1.
"Common Stock" has the meaning set forth in Section 4.1.
"Communications Act" has the meaning set forth in Section 9.1.
"Conversion Date" has the meaning set forth in Section 4.2(d)(i).
"Corporation" has the meaning set forth in ARTICLE I.
"DGCL" has the meaning set forth in ARTICLE III.
"FCC" has the meaning set forth in Section 9.1.
"Final Adjudication" has the meaning set forth in Section 8.2.
"Founding Investor" means Alfred C. Liggins, III or Catherine L.
Hughes.
"Indemnitee" has the meaning set forth in Section 8.2.
"Liquidation" with respect to the Corporation, means the liquidation,
dissolution or winding up of the Corporation.
"Notice" has the meaning set forth in Section 4.3(d)(i).
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability
company, a trust, an unincorporated association and any other entity or
organization.
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"Preferred Stock" has the meaning set forth in Section 4.2.
"Proceeding" has the meaning set forth in Section 8.2.
"Subsidiary" means any corporation with respect to which another
specified corporation has the power to vote or direct the voting of
sufficient securities to elect directors having a majority of the
voting power of the board of directors of such corporation.
"Substantial Beneficial Ownership" has the meaning set forth in
Section 4.3(g)(v).
"Undertaking" has the meaning set forth in Section 8.2.
ARTICLE V
Existence
The Corporation is to have a perpetual existence.
ARTICLE VI
General Provisions
Section 6.1. Dividends. The Board of Directors of the Corporation shall have
authority from time to time to set apart out of any assets of the Corporation
otherwise available for dividends a reserve or reserves as working capital or
for any other purpose or purposes, and to abolish or add to any such reserve
or reserves from time to time as said Board may deem to be in the interest of
the Corporation; and said Board shall likewise have power to determine in its
discretion, except as herein otherwise provided, what part of the assets of
the Corporation available for dividends in excess of such reserve or reserves
shall be declared in dividends and paid to the stockholders of the
Corporation.
Section 6.2. Issuance of Stock. The shares of all classes and series of
Capital Stock of the Corporation may be issued by the Corporation from time to
time for such consideration as from time to time may be fixed by the Board of
Directors of the Corporation, provided that shares having a par value shall
not be issued for a consideration less than such par value, as determined by
the Board. At any time, or from time to time, the Corporation may grant rights
or options to purchase from the Corporation any shares of its Capital Stock of
any class or series to run for such period of time, for such consideration,
upon such terms and conditions, and in such form as the Board of Directors of
the Corporation may determine. The Board of Directors of the Corporation shall
have authority, as provided by law, to determine that only a part of the
consideration which shall be received by the Corporation for the shares of its
Capital Stock having a par value be capital provided that the amount of the
part of such consideration so determined to be capital shall at least be equal
to the aggregate par value of such shares. The excess, if any, at any time, of
the total net assets of the Corporation over the amount so determined to be
capital, as aforesaid, shall be surplus. All classes and series of Capital
Stock of the Corporation shall be and remain at all times nonassessable.
The Board of Directors of the Corporation is hereby expressly authorized, in
its discretion, in connection with the issuance of any obligations or Capital
Stock of the Corporation (but without intending hereby to limit its general
power so to do in other cases), to grant rights or options to purchase Capital
Stock of the Corporation of any class or series upon such terms and during
such period as the Board of Directors of the Corporation shall determine, and
to cause such rights to be evidenced by such warrants or other instruments as
it may deem advisable.
Section 6.3. Inspection of Books and Records. The Board of Directors of the
Corporation shall have power from time to time to determine to what extent and
at what times and places and under what conditions and regulations the
accounts and books of the Corporation, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have any right to
inspect any account or book or document of the
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Corporation, except as conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution of the Board of Directors or the
stockholders of the Corporation.
Section 6.4. Location of Meetings, Books and Records. Except as otherwise
provided in the Bylaws, the stockholders of the Corporation and the Board of
Directors of the Corporation may hold their meetings and have an office or
offices outside of the State of Delaware, and, subject to the provisions of
the laws of said State, may keep the books of the Corporation outside of said
State at such places as may, from time to time, be designated by the Board of
Directors.
Section 6.5. Board of Directors Meeting. The Board of Directors shall be
comprised of the number of directors specified in the Corporation's Bylaws,
and such directors shall be elected in the manner contemplated by such Bylaws.
ARTICLE VII
Amendments
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation
in the manner now or hereinafter prescribed herein and by the laws of the
State of Delaware, and all rights conferred upon stockholders herein are
granted subject to this reservation. Notwithstanding the foregoing or anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, no such action under this ARTICLE VII shall change (A) the
redemption, conversion, voting or other rights of any class or series of
Preferred Stock without the affirmative vote of the holders of a majority of
each such class or series of Preferred Stock then outstanding, (B) the
conversion or voting rights of any class of Common Stock without the
affirmative vote of the holders of a majority of each class of Common Stock
then outstanding, and (C) the percentage required to approve any amendment,
modification or waiver described herein, without the affirmative vote of
holders of that percentage of the class or series of Capital Stock then
required to approve such amendment, modification or waiver.
ARTICLE VIII
Liability
Section 8.1. Limitation of Liability.
(a) To the fullest extent permitted by the DGCL as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted as of the date this Amended and Restated
Certificate of Incorporation is filed with the State of Delaware), and except
as otherwise provided in the Corporation's Bylaws, no director of the
Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty owed to the
Corporation or its stockholders.
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
Section 8.2. Right to Indemnification. Each person who was or is made party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "Proceeding"), by
reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan
(hereinafter, an "Indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity
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as a director or officer or in any other capacity while serving as a director
or officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide for broader indemnification
rights than permitted as of the date this Amended and Restated Certificate of
Incorporation is filed with the State of Delaware), against all expense,
liability and loss (including attorneys' fees, judgments, fines, excise taxes
or penalties and amounts paid in settlement) reasonably incurred or suffered
by such indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
Section 8.3 of this ARTICLE VIII with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Section 8.2 of this ARTICLE VIII shall be a contract right and shall include
the obligation of the Corporation to pay the expenses incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"Advance of Expenses"); provided, however, that if and to the extent that the
Board of Directors of the Corporation requires, an advance of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "Undertaking"), by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "Final
Adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 8.2 or otherwise. The Corporation may, by action
of its Board of Directors, provide indemnification to employees and agents of
the Corporation with the same or lesser scope and effect as the foregoing
indemnification of directors and officers.
Section 8.3. Procedure for Indemnification. Any indemnification of a
director or officer of the Corporation or advance of expenses under Section
8.2 of this ARTICLE VIII shall be made promptly, and in any event within
forty-five days (or, in the case of an advance of expenses, twenty days) upon
the written request of the director or officer. If a determination by the
Corporation that the director or officer is entitled to indemnification
pursuant to this ARTICLE VIII is required, and the Corporation fails to
respond within sixty days to a written request for indemnity, the Corporation
shall be deemed to have approved the request. If the Corporation denies a
written request for indemnification or advance of expenses, in whole or in
part, or if payment in full pursuant to such request is not made within forty-
five days (or, in the case of an advance of expenses, twenty days), the right
to indemnification or advances as granted by this ARTICLE VIII shall be
enforceable by the director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim
for the advance of expenses where the undertaking required pursuant to Section
8.2 of this ARTICLE VIII, if any, has been tendered to the Corporation) that
the claimant has not met the standards of conduct which make it permissible
under the DGCL for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. The procedure for
indemnification of other employees and agents for whom indemnification is
provided pursuant to Section 8.2 of this ARTICLE VIII shall be the same
procedure set forth in this Section 8.3 for directors or officers, unless
otherwise set forth in the action of the Board of Directors of the Corporation
providing for indemnification for such employee or agent.
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Section 8.4. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director,
officer, employee or agent of the Corporation or was serving at the request of
the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
DGCL.
Section 8.5. Service for Subsidiaries. Any person serving as a director,
officer, employee or agent of another Corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (hereinafter a "subsidiary" for
this ARTICLE VIII) shall be conclusively presumed to be serving in such
capacity at the request of the Corporation.
Section 8.6. Reliance. Persons who after the date of the adoption of this
provision become or remain directors or officers of the Corporation or who,
while a director or officer of the Corporation, become or remain a director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE VIII in entering into or continuing such service.
The rights to indemnification and to the advance of expenses conferred in this
ARTICLE VIII shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section 8.7. Non-Exclusivity of Rights. The rights to indemnification and to
the advance of expenses conferred in this ARTICLE VIII shall not be exclusive
of any other right which any person may have or hereafter acquire under this
Amended and Restated Certificate of Incorporation or under any statute, Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 8.8. Merger or Consolidation. For purposes of this ARTICLE VIII,
references to "the Corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed into the Corporation in
a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this ARTICLE VIII with
respect to the resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate existence had
continued.
ARTICLE IX
Alien Ownership of Stock
Section 9.1. Applicability. This ARTICLE IX shall be applicable to the
Corporation so long as the provisions of Section 310 of the Communications Act
of 1934, as the same may be amended from time to time (the "Communications
Act") (or any successor, provisions thereto) are applicable to the
Corporation. As used herein, the term "alien" shall have the meaning ascribed
thereto by the Federal Communications Commission ("FCC") on the date hereof
and in the future as Congress or the FCC may change such meaning form time to
time. If the provisions of Section 310 of the Communications Act (or any
successor provisions thereto) are amended, the restrictions in this ARTICLE IX
shall be amended in the same way, and as so amended, shall apply to the
Corporation. The Board of Directors of the Corporation may make such rules and
regulations as it shall deem necessary or appropriate to enforce the
provisions of this ARTICLE IX.
Section 9.2. Voting. Except as otherwise provided by law, not more than
twenty percent of the aggregate number of shares of Capital Stock of the
Corporation outstanding in any class or series entitled to vote on any matter
before a meeting of stockholders of the Corporation shall at any time be for
the account of aliens or their representatives or for the account of a foreign
government or representative thereof, or for the account of any corporation
organized under the laws of a foreign country.
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Section 9.3. Stock Certificates. Shares of Capital Stock issued to or held
by or for the account of aliens and their representatives, foreign governments
and representatives thereof, and corporations organized under the laws of
foreign countries shall be represented by Foreign Share Certificates. All
other shares of Capital Stock shall be represented by Domestic Share
Certificates. All of such certificates shall be in such form not inconsistent
with this Amended and Restated Certificate of Incorporation as shall be
prepared or approved by the Board of Directors of the Corporation.
Section 9.4. Limitation on Foreign Ownership. Except as otherwise provided
by law, not more than twenty percent of the aggregate number of shares of
Capital Stock of the Corporation outstanding shall at any time be owned of
record by or for the account of aliens or their representatives or by or for
the account of a foreign government or representatives thereof, or by or for
the account of any corporation organized under the laws of a foreign country.
Shares of Capital Stock shall not be transferable on the books of the
Corporation to aliens or their representatives, foreign governments or
representatives thereof, or corporations organized under the laws of foreign
countries if, as a result of such transfer, the aggregate number of shares of
Capital Stock owned by or for the account of aliens and their representatives,
foreign governments and representatives thereof, and corporations organized
under the laws of foreign countries shall be more than twenty percent of the
number of shares of Capital Stock then outstanding. If it shall be found by
the Corporation that Capital Stock represented by a Domestic Share Certificate
is, in fact, held by or for the account of aliens or their representative,
foreign governments or representatives thereof, or corporations organized
under the laws of foreign countries, then such Domestic Share Certificate
shall be canceled and a new certificate representing such Capital Stock marked
"Foreign Share Certificate" shall be issued in lieu thereof, but only to the
extent that after such issuance the Corporation shall be in compliance with
this ARTICLE IX; provided, however, that if, and to the extent, such issuance
would violate this ARTICLE IX, then, the holder of such Capital Stock shall
not be entitled to vote, to receive dividends, or to have any other rights
with regard to such Capital Stock to such extent, except the right to transfer
such Capital Stock to a citizen of the United States.
Section 9.5. Transfer of Foreign Share Certificates. Any Capital Stock
represented by Foreign Share Certificates may be transferred either to aliens
or non-aliens. In the event that any Capital Stock represented by a
certificate marked "Foreign Share Certificate" is sold or transferred to a
non-alien, then such non-alien shall be required to exchange such certificate
for a certificate marked "Domestic Share Certificate." If the Board of
Directors of the Corporation reasonably determines that a Domestic Share
Certificate has been or is to be transferred to or for the account of aliens
or their representatives, foreign governments or representatives thereof, or
corporations organized under the laws of foreign countries, the Corporation
shall issue a new certificate for the shares of Capital Stock transferred to
the transferee marked "Foreign Shares Certificate", cancel the old Domestic
Share Certificate, and record the transaction upon its books, but only to the
extent that after such transfer is complete, the Corporation shall be in
compliance with this ARTICLE IX.
Notwithstanding any other provision of this Amended and Restated Certificate
of Incorporation, the transfer or conversion of the Corporation's Capital
Stock, whether voluntary or involuntary, shall not be permitted, and shall be
ineffective, if such transfer or conversion would (i) violate (or would result
in violation of) the Communications Act or any of the rules or regulation
promulgated thereunder or (ii) require the prior approval of the FCC, unless
such prior approval has been obtained.
ARTICLE X
Section 203 Election
The Corporation expressly elects not to be governed by Section 203 of Title
8 of the DGCL.
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FORM OF PROXY
RADIO ONE, INC.
5900 Princess Garden Parkway
Lanham, Maryland 20706
This Proxy is solicited by the Board of Directors for the Special Meeting of
Stockholders to be held on April 28, 2000
The undersigned acknowledges receipt of the Notice of Special Meeting
of Stockholders of Radio One, Inc. (the "Company") and the accompanying Proxy
Statement. The undersigned hereby appoints Scott C. Royster and Linda J. Eckard,
and each of them individually, as proxies, each with the powers the undersigned
would possess if personally present, and each with full power of substitution,
to vote all of the shares of Class A Common Stock of the Company which the
undersigned is entitled to vote at the Special Meeting of Stockholders of the
Company to be held April 28, 2000, and at any adjournments or postponements
thereof, on the following proposal:
(1) Amendment of the Amended and Restated Certificate of
Incorporation to:
(a) eliminate the Company's 15% Series A Preferred Stock and to
eliminate the Company's 15% Series B Preferred Stock;
(b) create the Company's blank check Preferred Stock;
(c) create the Company's Class D Non-Voting Common Stock;
(d) increase the authorized number of shares of the Company's
Class A Common Stock, Class B Common Stock, and Class C Common Stock;
(e) provide holders of Class A Common Stock the right to convert
such Class A Common Stock into Class D Non-Voting Common Stock; and
(f) make certain other changes referred to in the accompanying
Proxy Statement.
With respect to such other matters that may properly come before the
Special Meeting or any adjournment or postponement of the Special Meeting, the
proxies named above are authorized to vote upon those matters in their
discretion.
You are encouraged to specify your choices by marking the appropriate
box (SEE REVERSE SIDE) but you need not mark any box if you wish to vote in
accordance with the Board of Directors' recommendations. Your shares cannot be
voted unless you sign, date and return this card.
SEE REVERSE SIDE
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Please mark your vote as in this example: [X]
When this proxy card is properly executed, the shares to which it relates
will be voted in accordance with the directions indicated hereon. If no
direction is made, the shares will be voted FOR proposal (1) below. THE BOARD OF
DIRECTORS RECOMMENDS A VOTE IN FAVOR OF THE FOLLOWING PROPOSAL:
(1) Approval of the amendment to the Amended and Restated Certificate
of Incorporation to:
(a) eliminate the Company's 15% Series A Preferred Stock and to
eliminate the Company's 15% Series B Preferred Stock;
(b) create the Company's Blank Check Preferred Stock;
(c) create the Company's Class D Non-Voting Common Stock;
(d) increase the authorized number of shares of the Company's
Class A Common Stock, Class B Common Stock, and Class C Common Stock;
(e) provide holders of Class A Common Stock the right to convert
such Class A Common Stock into Class D Non-Voting Common Stock; and
(f) make certain other changes referred to in the accompanying
Proxy Statement.
FOR [_] AGAINST [_] ABSTAIN [_]
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By signing this proxy card, you acknowledge receipt of the Notice of
Special Meeting of Stockholders to be held April 28, 2000 and the Proxy
Statement dated April 5, 2000.
DATE SIGNATURE(S)
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__________________ __________________________________________
__________________ __________________________________________
__________________ __________________________________________
__________________ __________________________________________
__________________ __________________________________________
NOTE: Please sign exactly as your name(s) appear(s) hereon. When
signing as attorney, executor, administrator, trustee or
guardian, please give full title as such. If more than one
name is shown, (including in the case of owners in joint
tenancy), each party should sign.
YOUR VOTE IS IMPORTANT. THANK YOU FOR VOTING
The signer hereby revokes all prior proxies given by the signer to vote
at the April 28, 2000 Special Meeting or any adjournments or
postponements thereof.
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