<PAGE>
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Confidential, for Use of the Commission Only (as Permitted By
Rule 14a-6(e)(2))
[X] Preliminary Proxy Statement
[_] 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 0-11.
(1) Title of each class of securities to which transaction applies:
-------------------------------------------------------------------------
(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:
<PAGE>
RADIO ONE, INC.
5900 Princess Garden Parkway
Lanham, Maryland 20706
March 31, 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 a.m., local
time, in the [name of room] at [meeting place and address].
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,
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 a.m., local time, in the [name of room] at [meeting
place and address] 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 100,000,000 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 100,000,000, 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
100,000,000, 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
100,000,000;
(e) 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.
<PAGE>
The Board of Directors of the Company has fixed the close of business on
March 31, 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. 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,
Linda J. Eckard
Assistant Secretary
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<PAGE>
RADIO ONE, INC.
5900 Princess Garden Parkway
Lanham, Maryland 20706
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
March 31, 2000 to all Stockholders of record as of the close of business on
March 31, 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 in the [name of room] at [meeting place
and address] at [9 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 each of the proposals 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
<PAGE>
the nominee does not have discretionary voting power and has not received voting
instructions from the beneficial owner.)
As of March 13, 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 March 13, 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 March 13, 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 March 13, 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, 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. Holders of Class C
Common Stock will be entitled to vote 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 March 31, 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; and (ii) 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.
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<PAGE>
THE MEETING
The Meeting will be held on April 28, 2000 at [9 a.m., local time] in the
[name of room] at [meeting place and address].
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, (iii) create a new
class of Class D Non-Voting Common Stock, (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, and (v) make certain other changes to the Company's
Amended and Restated Certificate of Incorporation, and (b) to transact any such
other business as may properly come before the Meeting or any postponement or
adjournment thereof.
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 (i) the elimination of all of the Company's
Series A and Series B Preferred Stock, (ii) the creation of a class of "blank
check" Preferred Stock (iii) the creation of a class of Class D Non-Voting
Common Stock, (iv) the increase in the authorized number of shares of each of
the Company's Class A Common Stock, Class B Common Stock and Class C Common
Stock, and (v) making certain other changes to the Company's Amended and
Restated Certificate of Incorporation. 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
proposal to amend the Amended and Restated Certificate of Incorporation 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.
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<PAGE>
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, or withheld with respect to the ballot proposition; votes that
are withheld will be excluded entirely from the vote and will have no effect.
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
American Stock Transfer & Trust Co. to aid in the solicitation of proxies and to
verify certain records. The Company will pay American Stock Transfer & Trust Co.
a fee of [$ xxxx] 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 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 March 31, 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.
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
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<PAGE>
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. The
inspectors of election appointed for the Meeting will determine whether a quorum
is present. Abstentions and instructions to withhold voting authority, 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 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; and (ii) 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. 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 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.
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<PAGE>
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>
PERCENTAGE PERCENTAGE
CLASS A CLASS B CLASS C/(1)/ 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)/.................. 52,957 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>
___________
* 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.
/(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.
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<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 which were then issued
and outstanding. There are no shares of either Series A Preferred or Series B
Preferred which are 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
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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 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. The Board
believes that it may issue shares of Preferred Stock during the next twelve
months for the purpose of financing the acquisition of radio broadcasting
assets. 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.
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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, 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 Common Stock.
Although the Board of Directors has no immediate definitive plans to issue
shares of Class D 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 Common Stock for such general corporate purposes,
which include, without limitation, stock splits and stock dividends, raising
capital, 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 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 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 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 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 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 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 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 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 Common Stock. Except as described
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above, the Company has no plans or proposals with respect to issuances of shares
of Class D 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 March 13, 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 11, 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
100,000,000, to increase the total number of authorized shares of Class B Common
Stock to 100,000,000 and to increase the total number of authorized shares of
Class C Common Stock to 100,000,000.
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, 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
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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.
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 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, and (ii) 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 change the vote needed to approve
amendments to Article VIII is not received, then the proposed amendments to
Amended and Restated Certificate of
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Incorporation, other than the amendments relating to the increase in the number
of authorized shares of the relevant class of 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
CERTIFICATION OF INCORPORATION.
STOCKHOLDER PROPOSALS FOR NEXT ANNUAL MEETING
The Company will hold its next annual meeting on [July ___, 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 [May ____, 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 [July
___, 2000] if they are received by the Company in the form of a written notice
no later than [May ____, 2000].
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,
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 401,000,000 shares, consisting
of: (i) 100,000,000 shares of Class A Common Stock, par value $.001 per share
(the "Class A Common"), (ii) 100,000,000 shares of Class B Common Stock, par
value $.001 per share (the "Class B Common"), (iii) 100,000,000 shares of Class
C Common Stock, par value $.001 per share (the "Class C Common"), (iv)
100,000,000 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
<PAGE>
sometimes collectively referred to as "Capital Stock." Certain capitalized terms
used herein are defined in Section 4.7(c) of ARTICLE IV.
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;
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(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 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
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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) General Provisions. Subject to the terms and conditions
stated herein, the holder of any shares of either Class A Common or Class C
Common shall have the right at any time, at such holder's option, to convert all
or a portion of the shares of the class of Common Stock so held into the same
number of shares of the other class of Common Stock. 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 or Class C Common into shares of the other class of
Common Stock 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 of Class A Common or Class C 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.
(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 C Common into Class A 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
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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) 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 person 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 or Class C Common, as the case may be.
(e) Listing. If the shares of Class A Common required to be reserved
for the purpose of conversion hereunder require listing on any national
securities exchange, before such shares are issued upon conversion, 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,
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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,
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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
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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.
(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
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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 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.
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"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.
"Preferred Stock" has the meaning set forth in Section 4.2.
"Proceeding" has the meaning set forth in Section 8.2.
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"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.
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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 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 VII
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.
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(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 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
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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.
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.
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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.
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
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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.
[END OF PAGE]
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
IN WITNESS WHEREOF, said Radio One, Inc. has caused its corporate seal to
be hereunto affixed and this Amended and Restated Certificate of Incorporation
to be signed by Alfred C. Liggins, III, its President, and attested by Scott R.
Royster, one of its Vice Presidents, this ____ day of __________, 2000.
RADIO ONE, INC.
By:____________________________________
Name: Alfred C. Liggins, III
Title: President
[SEAL]
ATTEST:
By: ___________________________
Name: Scott R. Royster
Title: Vice President
-17-
<PAGE>
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; and
(e) 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
<PAGE>
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;
and
(e) make certain other changes referred to in the accompanying
Proxy Statement.
FOR [ ] AGAINST [ ] ABSTAIN [ ] WITHHELD [ ]
-2-
<PAGE>
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 March 31, 2000.
DATE SIGNATURE(S)
---------- -------------------------------------------
__________ ___________________________________________
__________ ___________________________________________
__________ ___________________________________________
__________ ___________________________________________
__________ ___________________________________________
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.
-3-
