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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BIG CITY RADIO, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3790661
(State of incorporation or organization) (I.R.S.
employer identification number)
11 Skyline Drive 10532
Hawthorne, New York
(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Class A Common Stock, par value American Stock Exchange
$.01 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
The description of the Registrant's Class A Common Stock, par value
$.01 per share, is incorporated by reference to the information appearing the
Registrant's Prospectus, dated December 18, 1997, included as part of the
Registrant's Registration Statement on Form S-1 (Registration No. 333-36449).
Item 2. Exhibits.
1. Amended and Restated Certificate of Incorporation of Big City
Radio, Inc.
2. Amended and Restated By-Laws of Big City Radio, Inc.
3. Specimen Class A Common Stock certificate of Big City Radio, Inc.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
BIG CITY RADIO, INC.
By: /s/ PAUL R. THOMSON
_______________________________________
Name: Paul R. Thomson
Title: Vice President and Chief Financial Officer
Dated: December 16, 1997
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INDEX OF EXHIBITS
Exhibit Number Title Page Number
1. Amended and Restated Certificate of
Incorporation of Big City Radio, Inc.
2. Amended and Restated By-Laws of
Big City Radio, Inc.
3. Specimen Class A Common Stock
certificate of Big City Radio, Inc.
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Exhibit 1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BIG CITY RADIO, INC.
(Pursuant to Section 245 of
the General Corporation Law of the State of Delaware)
The undersigned President and Chief Executive Officer of Big City Radio,
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), hereby certify as follows:
FIRST: The Corporation's present name is Big City Radio, Inc.
SECOND: The Corporation was originally incorporated under the name of K
Broadcasting, Inc., and its original Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on
August 2, 1994. A Certificate of Amendment of Certificate of
Incorporation Before Payment of Any Part of the Capital was filed
with the Secretary of State of the State of Delaware on August 29,
1994. A Certificate of Merger of Q Broadcasting Inc. and the
Corporation was filed with the Secretary of State of the State of
Delaware on May 29, 1996. A Certificate of Amendment to the
Certificate of Incorporation changing the name of the Corporation
from Odyssey Communications, Inc. to Big City Radio, Inc. was filed
with the Secretary of State of the State of Delaware on December 2,
1997.
THIRD: This Amended and Restated Certificate of Incorporation further amends
and restates the Certificate of Incorporation of the Corporation, as
heretofore amended and now in effect.
FOURTH: This Amended and Restated Certificate of Incorporation of the
Corporation was duly adopted pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware to read as follows:
1. Name. The name of the corporation is Big City Radio, Inc.
2. Address; Registered Office and Agent. The address of the
Corporation's registered office in the State of Delaware is 1013 Center Road,
Wilmington, Delaware 19805; and its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
3. Purposes. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "General Corporation Law").
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4. Capitalization.
4.1 Authorized Capital Stock. The total number of shares of
stock that the Corporation shall have the authority to issue is One Hundred
and Twenty Million (120,000,000) shares, consisting of (a) Eighty Million
(80,000,000) shares of Class A Common Stock, par value $.01 per share (the
"Class A Common Stock"); (b) Twenty Million (20,000,000) shares of Class B
Common Stock, par value $.01 per share (the "Class B Common Stock"); and (c)
Twenty Million (20,000,000) shares of Preferred Stock, par value $.01 per
share (the "Preferred Stock"), issuable in one or more series as hereinafter
provided. The Class A Common Stock and the Class B Common Stock shall
hereinafter collectively be called the "Common Stock." Immediately upon the
effectiveness of this Amended and Restated Certificate of Incorporation, each
share of Common Stock of the Corporation, par value $.01 per share, that is
issued and outstanding immediately prior to such effectiveness shall be
changed into and reclassified as Seven Thousand Six Hundred and Ten (7,610)
shares of Class A Common Stock (the "Reclassification"). Immediately upon
completion of the Reclassification, each share of Class A Common Stock that
is owned of record by Stuart Subotnick or Anita Subotnick shall be exchanged
for one (1) share of Class B Common Stock. The number of authorized shares
of any class or classes of capital stock of the Corporation may be increased
or decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the voting power of the
stock of the Corporation entitled to vote generally in the election of
directors irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law or any corresponding provision hereinafter enacted.
4.2 Terms of Common Stock. All shares of Common Stock will be
identical in all respects and will entitle the holders thereof to the same
rights and privileges, except as otherwise provided herein.
(a) Voting Rights. The holders of shares of Common Stock
shall have the following voting rights:
(i) Each share of Class A Common Stock shall entitle
the holder thereof to one vote in person or by proxy on all matters
submitted to a vote of the stockholders of the Corporation.
(ii) Each share of Class B Common Stock shall entitle
the holder thereof to ten votes in person or by proxy on all matters
submitted to a vote of the stockholders of the Corporation.
(iii) Except for the election and the removal of
directors described below, and as otherwise required by applicable law, the
holders of shares of Common Stock shall vote together as one class on all
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matters submitted to a vote of stockholders of the Corporation (or, except
for the election or the removal of directors entitled to be elected by the
holders of Common Stock described below, if any holders of shares of
Preferred Stock are entitled to vote together with the holders of Common
Stock, as a single class with such holders of shares of Preferred Stock).
(iv) With respect to the annual election of directors,
the holders of Class B Common Stock shall be entitled, as a separate class,
to elect the number of directors nominated by the Class B Nominating
Committee (as defined in the Corporation's Amended and Restated Bylaws (the
"Bylaws")) determined by multiplying the total number of directorships of
the Corporation by .75, and rounding up any reminder. The holders of Class
A Common Stock and any holders of any series of Preferred Stock, if
entitled to vote for directors, shall be entitled, as a separate class, to
vote for any remaining directorships, such directors to be nominated by the
Class A Nominating Committee (as defined in the Corporation's Bylaws).
(v) Directors may be removed, with or without cause,
only by the holders of the class or classes of Common Stock or series of
Preferred Stock that, as of the date such removal is effected, would be
entitled to elect such directorship at the next annual meeting of
stockholders. Vacancies in a directorship may be filled only by (a) the
remaining directors elected by holders of each class of Common Stock or
series of Preferred Stock that (x) elected such directorship and (y) as of
the date such vacancy is filled, would be entitled to elect such
directorship at the next annual meeting of stockholders or, (b) if there
are no such remaining directors, then by the vote of the holders of the
class or classes of Common Stock or series of Preferred Stock that, as of
the date such vacancy is filled, would be entitled to elect such
directorship at the next annual meeting of stockholders, voting as a
separate class at a meeting, special or otherwise, of the holders of Common
Stock of such class or classes or series of Preferred Stock.
(b) Dividends and Distributions. Subject to the
preferences applicable to Preferred Stock outstanding at any time, the holders
of shares of Common Stock shall be entitled to receive such dividends and other
distributions in cash, property or shares of stock of the Corporation as may be
declared thereon by the Board of Directors of the Corporation (the "Board of
Directors") from time to time out of assets or funds of the Corporation legally
available therefor; provided, that, subject to the provisions of this Section
4.2(b), the Corporation shall not pay dividends or make distributions to any
holders of any class of Common Stock unless simultaneously with such dividend or
distribution, as the case may be, the Company makes the same dividend or
distribution with respect to each outstanding share of Common Stock regardless
of class. In the case of dividends or other distributions payable in Class A
Common Stock or Class B Common Stock,
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including distributions pursuant to stock splits or divisions of Class A Common
Stock or Class B Common Stock which occur after the first date upon which the
Corporation has issued shares of either Class A Common Stock or Class B Common
Stock, only shares of Class A Common Stock shall be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock shall be
distributed with respect to Class B Common Stock. Whenever a dividend or
distribution, including distributions pursuant to stock splits or divisions of
the Common Stock, is payable in shares of Class A Common Stock or Class B Common
Stock, the number of shares of each class of Common Stock payable per share of
such class of Common Stock shall be equal in number. In the case of dividends
or other distributions consisting of other voting securities of the Corporation
or of voting securities of any corporation which is a wholly-owned subsidiary of
the Corporation, the Corporation shall declare and pay such dividends in three
separate classes of such voting securities, identical in all respects, except
that (i) the voting rights of each such security paid to the holders of Class A
Common Stock shall be one-tenth of the voting rights of each such security paid
to the holders of Class B Common Stock, (ii) such security paid to the holders
of Class B Common Stock shall convert into the security paid to the holders of
Class A Common Stock upon the same terms and conditions then applicable to the
conversion of Class B Common Stock into Class A Common Stock and shall have the
same restrictions on transfer and ownership then applicable to the transfer and
ownership of the Class B Common Stock and (iii) with respect only to dividends
or other distributions of voting securities of any corporation which is a
wholly-owned subsidiary of the Corporation, the respective voting rights of each
such security paid to holders of Class A Common Stock and Class B Common Stock
with respect to the election of directors shall otherwise be as comparable as is
practicable to those of the Class A Common Stock and Class B Common Stock,
respectively. In the case of dividends or other distributions consisting of
securities convertible into, or exchangeable for, voting securities of the
Corporation or voting securities of another corporation which is a wholly-owned
subsidiary of the Corporation, the Corporation shall provide that such
convertible or exchangeable securities and the underlying securities be
identical in all respects (including, without limitation, the conversion or
exchange rate), except that (i) the voting rights of each security underlying
the convertible or exchangeable security paid to the holders of Class A Common
Stock shall be one-tenth of the voting rights of each security underlying the
convertible or exchangeable security paid to the holders of the Class B Common
Stock and (ii) such underlying securities paid to the holders of Class B Common
Stock shall convert into the underlying securities paid to the holders of
Class A Common Stock upon the same terms and conditions then applicable to the
conversion of Class B Common Stock into Class A Common Stock and shall have the
same restrictions on transfer and ownership then applicable to the transfer and
ownership of the Class B Common Stock.
(c) Conversion Rights of Class B Common Stock.
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(i) Each holder of Class B Common Stock shall be
entitled to convert, at any time and from time to time, any or all of the
shares of such holder's Class B Common Stock on a one-for-one basis, into
the same number of fully paid and nonassessable shares of Class A Common
Stock. Such right shall be exercised by the surrender of the certificate
or certificates representing the shares of Class B Common Stock to be
converted to the Corporation at any time during normal business hours at
the principal executive offices of the Corporation or at the office of the
Transfer Agent for the Common Stock (the "Transfer Agent"), accompanied by
a written notice of the holder of such shares stating that such holder
desires to convert such shares, or a stated number of the shares
represented by such certificate or certificates, into an equal number of
shares of the Class A Common Stock, and (if so required by the Corporation
or the Transfer Agent) by instruments of transfer, in form satisfactory to
the Corporation and to the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and transfer tax stamps or funds
therefor, if required pursuant to Section 4.2(c)(v) of this Amended and
Restated Certificate of Incorporation.
(ii) As promptly as practicable following the surrender
for conversion of a certificate representing shares of Class B Common Stock
in the manner provided in Section 4.2(c)(i) and the payment in cash of any
amount required by the provisions of Section 4.2(c)(v), the Corporation
will deliver or cause to be delivered at the office of the Transfer Agent,
a certificate or certificates representing the number of full shares of
Class A Common Stock issuable upon such conversion, issued in such name or
names as such holder may direct. Such conversion shall be deemed to have
been effected immediately prior to the close of business on the date of the
receipt by the Corporation or the Transfer Agent, as the case may be, of
the certificate or certificates representing shares of Class B Common
Stock. Upon the date any such conversion is made or effected, all rights
of the holder of such shares as such holder shall cease, and the person or
persons in whose name or names the certificates or certificates
representing the shares of Class A Common Stock are to be issued shall be
treated for all purposes as having become the record holder or holders of
such shares of Class A Common Stock; provided, however, that if any such
surrender and payment, if any, under Section 4.2(c)(v) occurs on any date
when the stock transfer books of the Corporation shall be closed, the
person or persons in whose name or names the certificate or certificates
representing shares of Class A Common Stock are to be issued shall be
deemed the record holder or holders thereof for all purposes immediately
prior to the close of business on the next succeeding day on which the
stock transfer books are open.
(iii) In the event of a reclassification or other
similar transaction as a result of which the shares of Class A Common Stock
are converted into another security, then a holder of Class B Common Stock
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shall be entitled to receive upon conversion of such shares the amount of
such security that such holder would have received if such conversion had
occurred immediately prior to the record date of such reclassification or
other similar transaction. No adjustments in respect of dividends shall be
made upon the conversion of any share of Class B Common Stock; provided,
however, that if a share of Class B Common Stock shall be converted
subsequent to the record date for the payment of a dividend or
other distribution on shares of Class B Common Stock but prior to
such payment, then the registered holder of such share at the close of
business on such record date shall be entitled to receive the dividend or
other distribution payable on such share of Class B Common Stock on such
date notwithstanding the conversion thereof or the Corporation's default in
payment of the dividend due on such date and will be deemed to have waived
the right to receive any dividend or other distribution on shares of Class
A Common Stock with a record date for the payment of such dividend or other
distribution that is prior to such conversion.
(iv) The Corporation covenants that it will at all
times reserve and keep available out of its authorized but unissued shares
of Class A Common Stock, solely for the purpose of issuance upon conversion
of the outstanding shares of Class B Common Stock, such number of shares of
Class A Common Stock that shall be issuable upon the conversion of all such
outstanding shares of Class B Common Stock; provided that, nothing
contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the conversion of the outstanding
shares of Class B Common Stock by delivery of purchased shares of Class A
Common Stock which are held in the treasury of the Corporation. The
Corporation covenants that if any shares of Class A Common Stock require
registration with or approval of any governmental authority under any
federal or state law before such shares of Class A Common stock may be
issued upon conversion of a share of Class B Common Stock, the Corporation
will cause such shares to be duly registered or approved, as the case may
be. The Corporation will use its best efforts to list the shares of
Class A Common Stock required to be delivered upon conversion prior to such
delivery upon each national securities exchange upon which the outstanding
Class A Common Stock is listed at the time of such delivery. The
Corporation covenants that all shares of Class A Common Stock that shall be
issued upon conversion of the shares of Class B Common Stock will, upon
issue, be validly issued, fully paid and nonassessable.
(v) The issuance of certificates for shares of Class A
Common Stock upon conversion of shares of Class B Common Stock shall be
made without charge to the holders of such shares for any stamp or other
similar tax in respect of such issuance; provided, however, that, if any
such certificate is to be issued in a name other than that of the holder of
the share or shares of Class B Common Stock converted, then the person or
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persons requesting the issuance thereof shall pay to the Corporation the
amount of any tax that may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of the Corporation
that such tax has been paid.
(vi) Shares of Class B Common Stock that are converted
into shares of Class A Common Stock as provided herein shall continue to be
authorized shares of Class B Common Stock and available for reissue by the
Corporation; provided, however, that no shares of Class B Common Stock
shall be reissued except as expressly permitted by Sections 4.2(b) and
4.2(d) of this Amended and Restated Certificate of Incorporation.
(d) Stock Splits. The Corporation shall not in any manner
subdivide (by any stock split, stock dividend, reclassification,
recapitalization or otherwise) or combine (by reverse stock split,
reclassification, recapitalization or otherwise) the outstanding shares of one
class of Common Stock unless the outstanding shares of all classes of Common
Stock shall be proportionately subdivided or combined.
(e) Options, Rights or Warrants.
(i) The Corporation shall not make any offering of
options, rights or warrants to subscribe for shares of Class B Common
Stock. If the Corporation makes an offering of options, rights or warrants
to subscribe for shares of any other class or classes of capital stock
(other than Class B Common Stock) to all holders of a class of Common Stock
then the Corporation shall simultaneously make an identical offering to all
holders of the other classes of Common Stock (other than to any class of
Common Stock the holders of which, voting as a separate class, determine
that such offering need not be made to such class). All such options,
rights or warrants offerings shall offer the respective holders of Class A
Common Stock and Class B Common Stock the right to subscribe at the same
rate per share.
(ii) Subject to Sections 4.2(c)(iii) and 4.2(e)(i) of
this Amended and Restated Certificate of Incorporation, the Corporation
shall have the power to create and issue, whether or not in connection with
the issue and sale of any shares of stock or other securities of the
Corporation, rights or options entitling the holders thereof to purchase
from the Corporation any shares of its capital stock of any class or
classes at the time authorized (other than Class B Common Stock), such
rights or options to have such terms and conditions, and to be evidenced by
or in such instrument or instruments, as shall be approved by the Board of
Directors.
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(f) Mergers, Consolidation, Etc. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then, and in such
event the shares of each class of Common Stock shall be exchanged for or changed
into (1) the same amount of stock, securities, cash and/or any other property,
as the case may be, into which or for which each share of any other class of
Common Stock is exchanged or changed; provided, however, that if shares of
Common Stock are exchanged for or changed into shares of capital stock, such
shares so exchanged for or changed into may differ to the extent and only to the
extent that the Class A Common Stock and the Class B Common Stock differ as
provided herein or (2) if holders of each class of Common Stock are to receive
different distributions of stock, securities, cash and/or any other property, an
amount of stock, securities, cash and/or property per share of Common Stock of
such class having a value, as determined by an independent investment banking
firm of national reputation selected by the Board of Directors, equal to the
value per share into which or for which each share of any other class of Common
Stock is exchanged or changed.
(g) Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and after making provision for the holders of
each series of Preferred Stock, if any, the remaining assets and funds of the
Corporation, if any, shall be divided among and paid ratably to the holders of
the shares of the Class A Common Stock and the Class B Common Stock treated as a
single class.
(h) No Preemptive Rights. Except as provided in Section
4.2(e) of this Amended and Restated Certificate of Incorporation, the holders of
shares of Common Stock are not entitled to any preemptive right to subscribe
for, purchase or receive any part of any new or additional issue of stock of any
class, whether now or hereafter authorized, or of bonds, debentures or other
securities convertible into or exchangeable for stock.
(i) Transfer of Class B Common Stock.
(i) No person may, directly or indirectly, sell
(whether by involuntary or judicial sale or otherwise), assign, transfer,
grant a security interest in, pledge, encumber, hypothecate, give (by
bequest, gift or appointment) or otherwise (voluntarily or by operation of
law) dispose of (collectively, "Transfer") any interest in his, her or its
shares of Class B Common Stock or in any shares of Class B Common Stock
held by such person for the benefit of or on the behalf of another person,
it being understood that the term Transfer shall not include the power to
vote or provide a consent with respect to his, her or its shares of Class B
Common Stock by proxy or otherwise, and the Corporation and the Transfer
Agent,
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shall not register the Transfer of such shares of Class B Common Stock,
except to the Corporation or a Class B Permitted Holder (as defined below);
provided, however, such restrictions on transfer shall not apply to a
merger, consolidation or business combination of the Corporation with or
into another corporation pursuant to which all of the outstanding shares of
each class of Common Stock and Preferred Stock of the Company is being
acquired. Any transfer of Class B Common Stock in violation of this
Section 4.2(i) shall be null and void ab initio, and the Corporation shall
not register such Transfer. For the purposes of this Article Four, a
"Class B Permitted Holder" shall include only the following persons: (i)
Stuart Subotnick, Anita Subotnick and their respective estates, guardians,
conservators or committees; (ii) each descendant of Stuart Subotnick or
Anita Subotnick (a "Subotnick Descendant") and their respective estates,
guardians, conservators or committees; (iii) each Subotnick Family
Controlled Entity (as defined below); and (iv) the trustees, in their
respective capacities as such, of each Subotnick Family Trust (as defined
below). The term "Subotnick Family Controlled Entity" means (i) any
not-for-profit corporation if at least a majority of its board of directors
is composed of Stuart Subotnick, Anita Subotnick and/or Subotnick
Descendants; (ii) any other corporation if at least a majority of the value
of its outstanding equity is owned by Class B Permitted Holders; (iii) any
partnership if at least a majority of the economic interest of its
partnership interests is owned by Class B Permitted Holders; and (iv) any
limited liability or similar company if at least a majority of the economic
interest of the company is owned by Class B Permitted Holders. The term
"Subotnick Family Trust" includes trusts the primary beneficiaries of which
are Stuart Subotnick, Anita Subotnick, Subotnick Descendants, Stuart or
Anita Subotnick's siblings, spouses of Subotnick Descendants and their
respective estates, guardians, conservators or committees and/or charitable
organizations (collectively, "Subotnick Beneficiaries"). For purposes of
this provision, the primary beneficiaries of a trust will be deemed to be
Subotnick Beneficiaries if, under the maximum exercise of discretion by the
trustee in favor of persons who are not Subotnick Beneficiaries, the value
of the interests of such persons in such trust, computed actuarially, is
50% or less. The factors and methods prescribed in section 7520 of the
Internal Revenue Code of 1986, as amended, on the date hereof or from time
to time as in effect, for use in ascertaining the value of certain
interests shall be used in determining a beneficiary's actuarial interest
in a trust for purposes of applying this provision. For purposes of this
provision, the actuarial value of the interest in a trust of any person in
whose favor a testamentary power of appointment may be exercised shall be
deemed to be zero. For purposes of this provision, in the case of a trust
created by a Subotnick Descendant, the actuarial value of the interest in
such trust of any person who may receive trust property only at the
termination of the trust and then only in the event that, at the
termination of the trust, there are no living issue of such Subotnick
Descendant, shall be deemed to be zero.
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(ii) Notwithstanding anything to the contrary set forth
herein, any Class B Permitted Holder may pledge his, her or its shares of
Class B Common Stock to a financial institution pursuant to a bona fide
pledge of such shares as collateral security for indebtedness due to the
pledgee; provided, that, such shares shall remain subject to the provisions
of this Section 4.2(i). In the event of foreclosure or other similar
action by the pledgee, such pledged shares of Class B Common Stock may only
be transferred to a Class B Permitted Holder or converted into shares of
Class A Common Stock, as the pledgee may elect.
(iii) For purposes of this Section 4.2(i):
(1) the relationship of any person that is
derived by or through legal adoption shall be considered a natural
relationship;
(2) a minor who is a descendant of Stuart or
Anita Subotnick and for whom shares of Class B Common Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be
considered a Class B Permitted Holder and the custodian who is the
record holder of such shares shall not be considered the Class B
Permitted Holder of such shares;
(3) an incompetent stockholder who is a Class B
Permitted Holder but whose shares are owned or held by a guardian or
conservator shall be considered a Class B Permitted Holder of such
shares and such guardian or conservator who is the holder of such
shares shall not be considered the Class B Permitted Holder of such
shares;
(4) unless otherwise specified, the term "person"
means and includes natural persons, corporations, partnerships
(general or limited), unincorporated associations, firms, joint
ventures, trusts, limited liability companies and all other entities;
and
(5) except as provided in clauses (2) and (3)
above, for purposes of determining whether the holder of shares of
Class B Common Stock is a Class B Permitted Holder, the record holder
of such share shall be considered the holder; provided, however, that
if such record holder is a nominee, the holder for purposes of
determining whether the holder of shares of Class B Common Stock is a
Class B Permitted Holder shall be the first person in the chain of
ownership of such share of Class B Common Stock who is not holding
such share solely as a nominee.
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(j) Certain Automatic Conversions of Class B Common Stock.
Subject to Section 4.2(i) of this Amended and Restated Certificate of
Incorporation, at such time as a person ceases to be a Class B Permitted Holder,
any and all shares of Class B Common Stock held by such person at such time
shall automatically convert prior to the close of business on the date such
person ceases to be a Class B Permitted Holder into shares of Class A Common
Stock, provided that, no conversion shall occur upon the pledge of a Class B
Permitted Holder's share of Class B Common Stock to a financial institution as
contemplated by and pursuant to Section 4.2(i)(ii) of this Amended and Restated
Certificate of Incorporation.
(k) Restrictions on Issuance. The Corporation shall not
issue or sell any shares of Class B Common Stock or any securities (including,
without limitation, any rights, options, warrants or other securities)
convertible, exchangeable or exercisable into shares of Class B Common Stock to
any person who is not a Class B Permitted Holder. Any issuance or sale of
shares of Class B Common Stock (or securities convertible into, or exchangeable
or exercisable for, shares of Class B Common Stock) in violation of this
Section 4.2(k) shall be null and void ab initio.
4.3 Preferred Stock. Shares of Preferred Stock may be
issued from time to time in one or more series of any number of shares provided
that the aggregate number of shares issued and not canceled of any and all
series shall not exceed the total number of shares of Preferred Stock
hereinabove authorized. The Board of Directors is authorized, by resolution
adopted and filed in accordance with law, to provide for the issue of such
series of shares of Preferred Stock. Each series of shares of Preferred Stock:
(a) may have such voting powers, full or limited, or may be without voting
powers; provided, however, that, unless holders of at least seventy-five percent
(75%) of the outstanding shares of Class B Common Stock have approved the
issuance of such shares of Preferred Stock, the Board of Directors may not issue
any shares of Preferred Stock that have the right (i) to vote for the election
of directors under ordinary circumstances, or (ii) under any circumstances to
elect twenty-five percent (25%) or more of the directors of the Corporation
after giving effect to the directorships filled by the holders of such shares of
Preferred Stock; (b) may be subject to redemption at such time or times and at
such prices; (c) may be entitled to receive dividends (which may be cumulative
or non-cumulative) at such rate or rates, on such conditions and at such times,
and payable in preference to, or in such relation to, the dividends payable on
any other class or classes or series of stock; (d) may have such rights upon the
dissolution of, or upon any distribution of the assets of, the Corporation;
(e) may be made convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or classes of
stock of the Corporation or such other corporation or other entity at such price
or prices or at such rates of exchange and with such adjustments; (f) may be
entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the
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12
Corporation or any subsidiary, upon the issue of any additional shares
(including additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the purchase,
redemption or other acquisition by the Corporation or any subsidiary of, any
outstanding shares of the Corporation; and (h) may have such other relative,
participating, optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall be stated in said resolution or resolutions
providing for the issue of such shares of such series of Preferred Stock. Any
of the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of any such series of Preferred Stock may be made
depended upon facts ascertainable outside of the resolution or resolutions
providing for the issue of such series of Preferred Stock adopted by the Board
of Directors pursuant to the authority vested in it by this Section 4.3,
provided that the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions of such series of Preferred Stock is clearly and expressly set
forth in the resolution or resolutions providing for the issue of such series of
Preferred Stock. The term "facts" as used in the next preceding sentence shall
have the meaning given to it in Section 151(a) of the General Corporation Law.
Shares of Preferred Stock of any series that have been redeemed or repurchased
by the Corporation (whether through the operation of a sinking fund or
otherwise) or that, if convertible or exchangeable, have been converted or
exchanged in accordance with their terms shall be retired and have the status of
authorized and unissued shares of Preferred Stock of the same series and may be
reissued as a part of the series of which they were originally a part or may,
upon the filing of an appropriate certificate with the Secretary of State of the
State of Delaware, be reissued as part of a new series of shares of Preferred
Stock to be created by resolution or resolutions of the Board of Directors or as
part of any other series of shares of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of shares of Preferred Stock. Notwithstanding anything herein to the
contrary, in no event shall any series of shares of Preferred Stock be entitled
to vote together with any class of Common Stock with respect to the election of
any directors entitled to be elected by such class of Common Stock pursuant to
Section 4.2(a)(iv).
4.4 Redemption. Notwithstanding any provision of this
Amended and Restated Certificate of Incorporation to the contrary, outstanding
shares of stock of the Corporation shall always be subject to redemption by the
Corporation, by action of the Board of Directors, if in the judgment of the
Board of Directors such action should be taken, pursuant to Section 151(b) of
the General Corporation Law or any other applicable provision of law, to the
extent necessary to prevent the loss or secure the reinstatement of any license
or franchise from any governmental agency held by the Corporation or any of its
subsidiaries, which license or franchise is conditioned upon some or all of the
holders of the Corporation's stock meeting prescribed qualifications and/or
restrictions. The terms and conditions of such redemption shall be as follows:
<PAGE>
13
(a) The redemption price of the shares to be redeemed
pursuant to this Section 4.4 shall be determined by the Board of Directors and
shall be at least equal to the lesser of (i) the Fair Market Value (as defined
below) or (ii) if such stock was purchased by such Disqualified Holder (as
defined below) within one year of the Redemption Date (as defined below), such
Disqualified Holder's purchase price for such shares;
(b) The redemption price of such shares may be paid in
cash, Redemption Securities (as defined below) or any combination thereof;
(c) If less than all the shares held by Disqualified
Holders are to be redeemed, the shares to be redeemed shall be selected in such
manner as shall be determined by the Board of Directors, which may include
selection first of the most recently purchased shares thereof, selection by lot
or selection in any other manner reasonably determined by the Board of
Directors;
(d) At least 30 days' written notice of the Redemption Date
shall be given to the record holders of the shares selected to be redeemed
(unless waived in writing by any such holder), provided that the Redemption Date
may be the date on which written notice shall be given to record holders if the
cash or Redemption Securities necessary to effect the redemption shall have been
deposited in trust for the benefit of such record holders and subject to
immediate withdrawal by them upon surrender of the stock certificates for their
shares to be redeemed;
(e) From and after the Redemption Date, any and all rights
of whatever nature, which may be held by the owners of shares selected for
redemption (including, without limitation, any rights to vote or participate in
dividends declared on stock of the same class or series as such shares), shall
cease and terminate and they shall thenceforth be entitled only to receive the
cash or Redemption Securities payable upon redemption; and
(f) Such other terms and conditions as the Board of
Directors shall reasonably determine.
For purposes of this Section 4.4:
(i) "Disqualified Holder" shall mean any holder of
shares of stock of the Corporation whose holding of such stock, either
individually or when taken together with the holding of shares of stock of
the Corporation by any other holders, may reasonably result, in the
judgement of the Board of Directors, in the loss of, or the failure to
secure the reinstatement of, any license or franchise from any governmental
agency held by the Corporation or any of its subsidiaries to conduct any
portion of the business of the Corporation or any of its subsidiaries.
<PAGE>
14
(ii) "Fair Market Value" of a share of the
Corporation's stock of any class or series shall mean the average Closing
Price for such a share for each of the 15 most recent days on which shares
of stock of such class or series shall have been traded on a national
securities exchange or nationally recognized over-the-counter market
preceding the day on which notice of redemption shall be given pursuant to
paragraph (d) of this Section 4.4; provided, however, that if shares of
stock of such class or series are not then traded on any national
securities exchange or nationally recognized over-the-counter market, "Fair
Market Value" shall be determined by the Board of Directors in good faith.
"Closing Price" on any day means the reported closing sales price or, in
case no such sale takes place, the average of the reported closing bid and
asked prices on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is listed,
or, if such stock is not listed on any such exchange, the highest closing
sales price or bid quotations for such stock on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in
use, or if no such prices or quotations are available, the fair market
value on the day in question as determined by the Board of Directors.
(iii) "Redemption Date" shall mean the date fixed
by the Board of Directors for the redemption of any shares of stock of the
Corporation pursuant to this Section 4.4.
(iv) "Redemption Securities" shall mean any debt
or equity securities of the Corporation, any of its subsidiaries or any
other corporation, or any combination thereof, having such terms and
conditions as shall be approved by the Board of Directors and which,
together with any cash to be paid as part of the redemption price, in the
opinion of any nationally recognized investment banking firm selected by
the Board of Directors (which may be a firm which provides other investment
banking, brokerage or other services to the Corporation), has a value, at
the time notice of redemption is given pursuant to paragraph (d) of this
Section 4.4, at least equal to the price required to be paid pursuant to
paragraph (a) of this Section 4.4 (assuming, in the case of Redemption
Securities to be publicly traded, such Redemption Securities were fully
distributed and subject only to normal trading activity).
5. Board of Directors.
5.1 Number of Directors. Initially, the number of Directors
shall be fixed at eight (8), consisting of six (6) directors to be designated
by the holders of Class B Common Stock and two (2) directors to be designated
by the holders of Class A Common Stock, and such number of Directors may be
changed from time to time by action of the stockholders or by action of the
Board of Directors. The members of the Board of Directors to be designated
by the holders of
<PAGE>
15
Class A Common Stock and Class B Common Stock, as the case may be, on the
date this Amended and Restated Certificate of Incorporation is filed with the
Secretary of State shall be determined by the Board of Directors by
resolution. Any vacancies shall be filed in accordance with the provisions
of Section 4.2(a)(v) of this Amended and Restated Certificate of
Incorporation. The use of the phrase "Entire Board" refers to the total
number of directors in office, whether or not present at a meeting of the
Board of Directors, but disregarding vacancies.
5.2 Powers of the Board of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors selected as provided by law and this Amended and Restated Certificate
of Incorporation and the Bylaws. In furtherance, and not in limitation, of the
powers conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to:
(a) subject to Section 8 of this Amended and Restated
Certificate of Incorporation, adopt, amend, alter, change or repeal the Bylaws;
provided, however, that no Bylaws hereafter adopted shall invalidate any prior
act of the Corporation that would have been valid if such new Bylaws had not
been adopted;
(b) subject to the Bylaws as from time to time in effect,
determine the rules and procedures for the conduct of the business of the Board
of Directors and the management and direction by the Board of Directors of the
business and affairs of the Corporation, including the power to designate and
empower committees of the Board of Directors, to elect, or authorize the
appointment of, and empower officers and other agents of the Corporation, and to
determine the time and place of, the notice requirements for, and the manner of
conducting, Board of Directors' meetings, as well as other notice requirements
for, and the manner of taking, Board of Directors action; and
(c) exercise all such powers and do all such acts as may be
exercised or done by the Corporation, subject to the provisions of the General
Corporation Law, this Amended and Restated Certificate of Incorporation and the
Bylaws.
6. Liability of Directors.
6.1 Limitation of Liability. No director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that this provision
shall not eliminate or limit the liability of a director (a) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the General Corporation Law
or (d) for any transaction from which the director derived any improper personal
benefits. If the General Corporation Law is
<PAGE>
16
amended after approval by the stockholders of this article to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General Corporation
Law, as so amended.
6.2 Amendments. Any repeal or modification of Section 6.1
hereof 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.
7. Indemnification.
7.1 To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation, or, at the request of the Corporation, is or was
serving as a director or officer of any other corporation or in a capacity with
comparable authority or responsibilities for any partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees, disbursements and other
charges). Persons who are not directors or officers of the Corporation (or
otherwise entitled to indemnification pursuant to the preceding sentence) may be
similarly indemnified in respect of service to the Corporation or to an Other
Entity at the request of the Corporation to the extent the Board of Directors at
any time specifies that such persons are entitled to the benefits of this
Section 7.
7.2 The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys' fees
and disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that, if required by
the General Corporation Law, such expenses incurred by or on behalf of any
director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
7.3 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall not
<PAGE>
17
be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Amended and Restated Certificate
of Incorporation, the By-laws, any agreement, any vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
7.4 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
7.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of an Other Entity, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Section 7, the Bylaws or under Section 145 of the
General Corporation Law or any other provision of law.
7.6 The provisions of this Section 7 shall be a contract between
the Corporation, on the one hand, and each director and officer who serves in
such capacity at any time while this Section 7 is in effect and any other person
entitled to indemnification hereunder, on the other hand, pursuant to which the
Corporation and each such director, officer, or other person intend to be, and
shall be, legally bound. No repeal or modification of this Section 7 shall
affect any rights or obligations with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
7.7 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent
jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall
<PAGE>
18
constitute a defense to the action or create a presumption that such person is
not so entitled. Such a person shall also be indemnified for any expenses
incurred in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
7.8 Any director or officer of the Corporation serving in any
capacity in an Other Entity shall be deemed to be doing so at the request of the
Corporation.
7.9 Any person entitled to be indemnified or to reimbursement or
advancement of expenses as a matter of right pursuant to this Section 7 may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
8. Adoption, Amendment and/or Repeal of Bylaws. The Board of
Directors may from time to time adopt, amend, alter, change or repeal the Bylaws
as set forth under Section 5.2(a) of this Amended and Restated Certificate of
Incorporation; provided, however, that any Bylaws adopted, amended, altered or
changed by the Board of Directors may be amended, altered, changed or repealed,
and any Bylaws may be adopted, by the stockholders of the Corporation by vote of
a majority of the holders of shares of stock of the Corporation entitled to vote
in the election of directors of the Corporation.
9. Special Meetings of Stockholders. Special meetings of
stockholders for any purpose may be called at any time by the Chairman, Vice
Chairman of the Board of Directors, by the President of the Corporation or by
the holders of at least thirty-three percent (33%) of the voting power of the
outstanding shares of Common Stock. Special meetings of stockholders shall be
held at such place or places within or without the State of Delaware and shall
from time to time be designated by the Board of Directors and stated in such
notice of meeting. At a special meeting of stockholders no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of meeting.
10. Amendment and/or Repeal of Amended and Restated Certificate of
Incorporation. From time to time any of the provisions of this Amended and
Restated Certificate of Incorporation may be amended, altered or repealed, and
other provisions
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19
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws and this
Amended and Restated Certificate of Incorporation, and all rights at any time
conferred upon the stockholders of the Corporation by this Amended and Restated
Certificate of Incorporation are granted subject to the provisions of this
Section 10.
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20
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
of the Corporation, which restates, integrates and amends the provisions of the
certificate of incorporation of the Corporation, and which was duly approved
pursuant to resolutions set forth in unanimous written consents adopted by the
Board of Directors of the Corporation and the holders of all of the outstanding
shares of stock of the Corporation in accordance with the requirements of
Sections 228, 242 and 245 of the General Corporation Law, has been executed by
Michael Kakoyiannis, acting in his capacity as President and Chief Executive
Officer for the Corporation, this __th day of December, 1997.
BIG CITY RADIO, INC.
By: __________________________
Name: Michael Kakoyiannis
Title: President and
Chief Executive Officer
<PAGE>
Exhibit 2
AMENDED AND RESTATED BYLAWS
of
Big City Radio, Inc.
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these Bylaws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Bylaws" means these Amended and Restated Bylaws of the
Corporation, as amended, supplemented or restated from time to time.
1.5 "Certificate of Incorporation" means the Amended and Restated
Certificate of Incorporation of the Corporation, as amended, supplemented or
restated from time to time.
1.6 "Chairman" means the Chairman of the Board of the Corporation.
1.7 "Chief Executive Officer" means the Chief Executive Officer of
the Corporation.
1.8 "Chief Operating Officer" means the Chief Operating Officer of
the Corporation.
1.9 "Class A Common Stock" has the meaning specified in Section
2.2.2.
1.10 "Class A Directors" has the meaning specified in Section 4.2.
1.11 "Class A Nomination Committee" has the meaning specified in
Section 4.2.
<PAGE>
2
1.12 "Class B Common Stock" has the meaning specified in Section 2.4.
1.13 "Class B Directors" has the meaning specified in Section 4.3.
1.14 "Class B Nominating Committee" has the meaning specified in
Section 4.3.
1.15 "Corporation" means Big City Radio, Inc.
1.16 "Directors" means directors of the Corporation.
1.17 "Entire Board" means all Directors in office, whether or not
present at a meeting of the Board, but disregarding vacancies.
1.18 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.19 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.20 "President" means the President of the Corporation.
1.21 "Secretary" means the Secretary of the Corporation.
1.22 "Stockholders" means stockholders of the Corporation.
1.23 "Treasurer" means the Treasurer of the Corporation.
1.24 "Vice Chairman" means the Vice Chairman of the Board.
1.25 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders shall be held
at the office of the Corporation or at such other place within or without the
State of Delaware as shall be specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
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3
2.2 Annual Meeting. A meeting of Stockholders shall be held annually
for the election of Directors and the transaction of other business as may
properly come before the meeting at such date and time as may be determined by
the Board and designated in the notice of meeting.
2.2.1 At any such annual meeting of Stockholders, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been properly brought before the annual meeting of Stockholders
(A) by, or at the direction of, the Board or (B) by a Stockholder of the
Corporation who complies with the procedures set forth in this Section 2.2.1.
For business or a proposal to be properly brought before an annual meeting of
Stockholders by a Stockholder, the Stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
Stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the scheduled date of the annual meeting, regardless of
any postponement, deferral or adjournment of that meeting to a later date;
PROVIDED, HOWEVER, that if less than 70 days' notice or prior public disclosure
of the date of the annual meeting is given or made to Stockholders, notice by
the Stockholder to be timely must be so delivered or received not later than the
close of business on the 10th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed or (ii) the day on which such
public disclosure was made.
A Stockholder's notice to the Secretary shall set forth as to
each matter the Stockholder proposes to bring before an annual meeting of
Stockholders (i) a description, in 500 words or less, of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the
Corporation's books, of the Stockholder proposing such business and any other
Stockholders known by such Stockholder to be supporting such proposal, (iii) the
class and number of shares of the Corporation which are beneficially owned by
such Stockholder on the date of such Stockholder's notice and by any other
Stockholders known by such Stockholder to be supporting such proposal on the
date of such Stockholder's notice, (iv) a description, in 500 words or less, of
any interest of the Stockholder in such proposal and (v) a representation that
the Stockholder is a holder of record of stock of the Corporation and intends to
appear in person or by proxy at the meeting to present the proposal specified in
the notice. Notwithstanding anything in these By-Laws or in the Certificate of
Incorporation to the contrary, no business shall be conducted at a meeting of
Stockholders except in accordance with the procedures set forth in this
Section 2.2.1.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that the business was not properly brought
before the meeting in accordance with the procedures prescribed by this
Section 2.2.1, and if he should so determine, he shall so declare to the meeting
and
<PAGE>
4
any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing, nothing in this Section 2.2.1 shall
be interpreted or construed to require the inclusion of information about any
such proposal in any proxy statement distributed by, at the direction of, or on
behalf of, the Board.
2.2.2 Nominations for election to the Board shall be made
(i) in the case of the Class A Directors, by the Class A Nominating
Committee, and (ii) in the case of the Class B Directors, by the Class B
Nominating Committee. In addition, nominations of persons for election to the
Board as Class A Directors may be made at an annual meeting of Stockholders
or special meeting of Stockholders called by the Board for the purpose of
electing directors by any holder of the Corporation's Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"), entitled to vote for
the election of directors at such meeting who complies with the notice
procedures set forth in this Section 2.2.2. Such nominations shall be made
pursuant to timely notice in writing to the Secretary. To be timely, a
Stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the scheduled date of the meeting, regardless of any
postponement, deferral or adjournment of that meeting to a later date;
PROVIDED, HOWEVER, that if less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to Stockholders,
notice by the Stockholder to be timely must be so delivered or received not
later than the close of business on the 10th day following the earlier of (i)
the day on which such notice of the date of the meeting was mailed or (ii)
the day on which such public disclosure was made.
A Stockholder's notice to the Secretary shall set forth (i) as to
each person whom the Stockholder proposes to nominate for election or reelection
as a director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of stock of the Corporation which are beneficially owned by
such person on the date of such Stockholder's notice and (d) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, or any successor statute thereto (the "Exchange Act") (including,
without limitation, such person's written consent to being named in the proxy
statement as a nominee and to serving as a director, if elected); (ii) as to the
Stockholder giving the notice (a) the name and address, as they appear on the
Corporation's books, of such Stockholder and any other Stockholders known by
such Stockholder to be supporting such nominee(s), (b) the class and number of
shares of stock of the Corporation which are beneficially owned by such
Stockholder on the date of such Stockholder's notice and by any other
Stockholders known by such Stockholder to be supporting such nominee(s) on the
date of such Stockholder's notice, (c) a representation that the Stockholder is
a holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by
<PAGE>
5
proxy at the meeting to nominate the person or persons specified in the notice;
and (iii) a description of all arrangements or understandings between the
Stockholder and each nominee and other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
Stockholder.
Subject to the rights, if any, of the holders of any series of
Preferred Stock then outstanding, no person (other than persons nominated by or
at the direction of the Board, the Class A Nominating Committee or the Class B
Nominating Committee) shall be eligible for election as Director unless
nominated in accordance with the procedures set forth in this Section 2.2.2.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the procedures
prescribed by this Section 2.2.2, and, if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of Stockholders for the election of Directors and the transaction of
other business is not held at such date and at such time as determined by
pursuant to Section 2.2 hereof, the Board shall call a meeting of Stockholders
for the election of Directors and the transaction of other business as soon
thereafter as convenient.
2.4 Other Special Meetings. A special meeting of Stockholders (other
than a special meeting for the election of Directors), unless otherwise
prescribed by statute or by the Certificate of Incorporation, may be called at
any time by the Board, the Chairman, the Vice Chairman, the President or the
holders of at least thirty-three percent (33%) of the combined voting power of
the Corporation's Class A Common Stock and Class B Common Stock, par value $.01
per share (the "Class B Common Stock"). At any special meeting of Stockholders,
only such business may be transacted as is related to the purpose or purposes of
such meeting set forth in the notice thereof given pursuant to Section 2.6
hereof or in any waiver of notice thereof given pursuant to Section 2.7 hereof.
2.5 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation, to express consent to corporate action taken without a meeting or
(iii) to receive payment of any dividend or other distribution or allotment of
any rights, or to exercise any rights in respect of any change, conversion or
exchange of stock; or (b) any other lawful action, the Board may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date was adopted by the Board and which record date shall not
be (x) in the case of clause (a)(i) above, more than sixty nor less than
ten days before the date of such meeting, (y) in the case of clause (a)(ii)
above, more than 10 days after the date upon which the resolution fixing the
record date was adopted by the Board and (z) in the case of clause (a)(iii)
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6
or (b) above, more than sixty days prior to such action. If no such record date
is fixed:
2.5.1 the record date for determining Stockholders entitled
to notice of or to vote at a meeting of Stockholders shall be at the close
of business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held;
2.5.2 the record date for determining Stockholders entitled
to express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), when no prior
action by the Board is required under the General Corporation Law, shall be
the first day on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of Stockholders are recorded; and
when prior action by the Board is required under the General Corporation
Law, the record date for determining Stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of
business on the date on which the Board adopts the resolution taking such
prior action; and
2.5.3 the record date for determining Stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting. Delivery made to the Corporation's
registered office in accordance with Section 2.5.2 shall be by hand or by
certified or registered mail, return receipt requested.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
in Sections 2.5 and 2.7 hereof, whenever under the provisions of any statute,
the Certificate of Incorporation or these Bylaws, Stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. Unless otherwise
provided by any statute, the Certificate of Incorporation or these By-laws, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to
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7
vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, with postage prepaid, directed to the
Stockholder at his or her address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this Section 2.6
has been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken, and at the
adjourned meeting any business may be transacted that might have been transacted
at the meeting as originally called. If, however, the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder of record entitled to vote at the meeting.
2.7 Waivers of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these Bylaws, a waiver thereof,
in writing, signed by the Stockholder or Stockholders entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any written waiver of notice unless so required by statute, the
Certificate of Incorporation or these Bylaws.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each
Stockholder. Such list shall be open to the examination of any Stockholder,
the Stockholder's agent, or attorney, at the Stockholder's expense, for any
purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
Stockholder who is present. The Corporation shall maintain the Stockholder
list in written form or in another form capable of conversion into written
form within a reasonable time. Upon the willful neglect or refusal of the
Directors to produce such a list at any meeting for the election of
Directors, they shall be ineligible for election to any office at such
meeting. The stock ledger shall be the only evidence as to who are the
Stockholders
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8
entitled to examine the stock ledger, the list of Stockholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise
provided by any statute, the Certificate of Incorporation or these Bylaws, the
holders of one-third of all outstanding shares of stock entitled to vote at any
meeting of Stockholders, present in person or represented by proxy, shall
constitute a quorum for the transaction of any business at such meeting. When a
quorum is once present to organize a meeting of Stockholders, it is not broken
by the subsequent withdrawal of any Stockholders. The holders of a majority of
the shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; PROVIDED, HOWEVER, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his or her
name on the record of Stockholders determined in accordance with Section 2.5
hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the Bylaws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in assuming
that the persons in whose names shares of capital stock stand on the stock
ledger of the Corporation are entitled to vote such shares. Holders of
redeemable shares of stock are not entitled to vote after the notice of
redemption is mailed to such holders and a sum sufficient to redeem the stocks
has been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares of stock. At any meeting of Stockholders (at which a
quorum was present to organize the meeting), all matters, except as otherwise
provided by statute or by the Certificate of Incorporation or by these Bylaws,
shall be decided by a majority of the votes cast at such meeting by the holders
of shares present in person or represented by proxy and entitled to vote
thereon, whether or not a quorum is present when the vote is taken. All
elections of Directors shall be by written ballot unless otherwise provided in
the Certificate of Incorporation. In voting on any other question on which a
vote by ballot is required by law or is demanded by any Stockholder entitled to
vote, the voting shall be by ballot. Each ballot shall be signed by the
Stockholder voting or the
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9
Stockholder's proxy and shall state the number of shares voted. On all other
questions, the voting may be viva voce. Each Stockholder entitled to vote at a
meeting of Stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
such Stockholder by proxy. The validity and enforceability of any proxy shall
be determined in accordance with Section 212 of the General Corporation Law. A
Stockholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary.
2.11 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Board, in advance of any meeting of Stockholders, may appoint
one or more inspectors to act at the meeting and make a written report thereof.
The Board may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate has been appointed
or is able to act at a meeting, the person presiding at the meeting may appoint,
and on the request of any Stockholder entitled to vote thereat shall appoint,
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall (a) ascertain the number of
shares outstanding and the voting power of each, (b) determine the shares
represented at the meeting and the validity of proxies and ballots, (c) count
all votes and ballots, (d) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the
inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. Unless otherwise provided by the
Board, the date and time of the opening and the closing of the polls for each
matter upon which the Stockholders will vote at a meeting shall be determined by
the person presiding at the meeting and shall be announced at the meeting. No
ballot, proxies or votes, or any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery of the State of Delaware upon application by a Stockholder shall
determine otherwise.
2.12 Organization. At each meeting of Stockholders, the Chairman, or
in the absence of the Chairman, the Vice Chairman, or in the absence of the Vice
Chairman, the Chief Executive Officer, or in the absence of the Chief Executive
Officer, the President, or in the absence of the President, a Vice President,
and in case more than one Vice President shall be present, that Vice President
designated by the Board (or in the absence of any such designation, the most
senior Vice President, based on age, present), shall act as chairman of the
meeting. The Secretary, or in his or her absence, one of the Assistant
Secretaries, shall act as secretary of the meeting.
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10
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting. The chairman of the
meeting shall be empowered to prescribe such rules for the conduct of any
meeting as he deems necessary or appropriate.
2.13 Order of Business. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered (by hand or by certified or registered mail, return
receipt requested) to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of Stockholders are recorded. Every written consent shall bear the date of
signature of each Stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
60 days of the earliest dated consent delivered in the manner required by this
Section 2.14, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation as aforesaid. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those Stockholders who have not consented in writing.
ARTICLE 3
Directors
3.1 General Powers. Except as otherwise provided in the Certificate
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
Bylaws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by
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11
these Bylaws, the Board may exercise all powers and perform all acts that are
not required, by these Bylaws or the Certificate of Incorporation or by statute,
to be exercised and performed by the Stockholders.
3.2 Number; Qualification; Term of Office. The number of Directors
shall be fixed initially at eight (8) and may thereafter be changed from time to
time by action of the Stockholders or by action of the Board. Directors need
not be Stockholders. Each Director shall hold office until a successor is
elected and qualified or until the Director's death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by
statute, by the Certificate of Incorporation or by these Bylaws, be elected by a
plurality of the votes cast at a meeting of Stockholders (or Stockholders acting
by written consent) by the holders of shares entitled to vote in the election,
voting as a separate class.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
provided in the Certificate of Incorporation, newly created Directorships
resulting from an increase in the number of Directors and vacancies occurring in
the Board for any other reason, including the removal of Directors without
cause, may be filled only by (a) the affirmative votes of a majority of the
remaining directors elected by holders of each class of Common Stock or series
of Preferred Stock that (x) elected such directorship and (y) as of the date
such vacancy is filled, would be entitled to elect such directorship at the next
annual meeting of Stockholders or, (b) if there are no such remaining directors,
then by a plurality of the votes cast by the holders of the class or classes of
Common Stock or series of Preferred Stock that, as of the date such vacancy is
filled, would be entitled to elect such directorship at the next annual meeting
of Stockholders, voting as a separate class at a meeting, special or otherwise,
of the holders of Common Stock of such class or classes or series of Preferred
Stock. A Director elected to fill a vacancy shall be elected to hold office
until a successor is elected and qualified, or until the Director's earlier
death, resignation or removal.
3.5 Resignation. Any Director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified in such resignation, the
acceptance of such resignation shall not be necessary to make it effective.
3.6 Removal. Unless otherwise provided in the Certificate of
Incorporation, and subject to the provisions of Section 141(k) of the General
Corporation Law, Directors may be removed with or without cause only by a
majority of the holders of the class or classes of Common Stock or series of
Preferred Stock that, as of the date such removal is effected, would be entitled
to elect such directorship at the next annual meeting of Stockholders.
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12
3.7 Compensation. Each Director, in consideration of his or her
service as such, shall be entitled to receive from the Corporation such amount
per annum or such fees for attendance at Directors' meetings, or both, as the
Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall
serve as a member of any committee of Directors in consideration of serving as
such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in the performance of his or her
duties. Nothing contained in this Section 3.7 shall preclude any Director from
serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.8 Times and Places of Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. The times
and places for holding meetings of the Board may be fixed from time to time by
resolution of the Board or (unless contrary to a resolution of the Board) in the
notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the
annual meeting of Stockholders for the election of Directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 hereof for special meetings of the Board or in a waiver of
notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held
without notice at such times and at such places as shall from time to time be
determined by the Board.
3.11 Special Meetings. Special meetings of the Board may be called by
the Chairman, the Vice Chairman, the Chief Executive Officer, the President or
the Secretary or by any two or more Directors then serving on at least one day's
notice to each Director given by one of the means specified in Section 3.14
hereof other than by mail, or on at least three days' notice if given by mail.
Special meetings shall be called by the Chairman, the Vice Chairman, the Chief
Executive Officer, the President or the Secretary in like manner and on like
notice on the written request of any two or more of the Directors then serving.
3.12 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of such
committee by means of conference telephone or similar communications equipment
by
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means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 3.12 shall constitute
presence in person at such meeting.
3.13 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least one day's
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.14 hereof other than by mail,
or at least three days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.14 Notice Procedure. Subject to Sections 3.11 and 3.17 hereof,
whenever, under the provisions of any statute, the Certificate of Incorporation
or these Bylaws, notice is required to be given to any Director, such notice
shall be deemed given effectively if given in person or by telephone, by mail
addressed to such Director at such Director's address as it appears on the
records of the Corporation, with postage thereon prepaid, or by telegram, telex,
telecopy or similar means addressed as aforesaid.
3.15 Waiver of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these Bylaws, a waiver thereof,
in writing, signed by the person or persons entitled to said notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by a person at a meeting shall constitute a
waiver of notice of such meeting except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Directors or a committee of Directors
need be specified in any written waiver of notice unless so required by statute,
the Certificate of Incorporation or these Bylaws.
3.16 Organization. At each meeting of the Board, the Chairman, or in
the absence of the Chairman, the Vice Chairman, or in the absence of the Vice
Chairman, the Chief Executive Officer, or in the absence of the Chief Executive
Officer, the President, or in the absence of the President, a chairman chosen by
a majority of the Directors present, shall preside. The Secretary shall act as
secretary at each meeting of the Board. In case the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform the duties
of secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
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3.17 Quorum of Directors. The presence in person of a majority of the
Entire Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, but a majority of a smaller
number may adjourn any such meeting to a later date.
3.18 Action by Majority Vote. Except as otherwise expressly required
by statute, the Certificate of Incorporation or these Bylaws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
3.19 Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
4.1 General. The Board may, by resolution passed by a vote of a
majority of the Entire Board, designate one or more committees, each committee
to consist of one or more Directors. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining member or members present and not disqualified from voting,
whether or not such member or members constitute a quorum, may, by a unanimous
vote, appoint another member of the Board to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board passed as aforesaid, shall have and may
exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be impressed on all papers that may require it, but no such
committee shall have the power or authority of the Board in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation under section 251 or section 252 of the General Corporation Law,
recommending to the Stockholders (a) the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, or (b) a dissolution
of the Corporation or a revocation of a dissolution, or amending the Bylaws of
the Corporation; and, unless the resolution designating it expressly so
provides, no such committee shall have the power and authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law.
Unless otherwise specified in the
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15
resolution of the Board designating a committee, at all meetings of such
committee a majority of the total number of members of the committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which there is a
quorum shall be the act of the committee. Each committee shall keep regular
minutes of its meetings. Unless the Board otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board conducts its business pursuant to
Article 3 of these Bylaws.
4.2 Class A Nominating Committee. The Board, by resolution adopted by
a majority of the entire Board, shall designate not less than two (2) of the
Directors then in office to constitute a Class A Nominating Committee; provided,
that at least a majority of such directors must be Class A Directors. The Class
A Nominating Committee shall: (i) establish criteria and procedures for the
election of the Class A Directors; (ii) review management's evaluation of any
officers proposed for nomination as Class A Directors; (iii) review the
qualifications of and, when necessary and appropriate, interview candidates who
may be proposed for nomination as Class A Directors; (iv) recommend to the
Entire Board a slate of Class A Directors to be elected for the following year;
and (v) perform such other duties in connection with the selection, election, or
termination of the Class A Directors as the Board may request.
For purposes of the Certificate of Incorporation and these Bylaws the
term "Class A Directors" shall mean the Directors elected by the holders of the
Class A Common Stock and the term "Class A Nominating Committee" shall mean the
standing committee of the Board charged with nominating Class A Directors.
4.3 Class B Nominating Committee. The Board, by resolution adopted
by a majority of the entire Board, shall designate not less than two (2) of the
directors then in office to constitute a Class B Nominating Committee; provided,
that at least a majority of such directors must be Class B Directors. The Class
B Nominating Committee shall: (i) establish criteria and procedures for the
election of the Class B Directors; (ii) review management's evaluation of any
officers proposed for nomination as Class B Directors; (iii) review the
qualifications of and, when necessary and appropriate, interview candidates who
may be proposed for nomination as Class B Directors; (iv) recommend to the
Entire Board a slate of Class B Directors to be elected for the following year;
and (v) perform such other duties in connection with the selection, election, or
termination of the Class B Directors as the Board may request.
For the purposes of the Certificate of Incorporation and these Bylaws
the term "Class B Directors" shall mean the Directors elected by the holders of
the
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Class B Common Stock and the term "Class B Nominating Committee" shall mean the
standing committee of the Board charged with nominating Class B Directors.
4.4 Executive Committee. The Board of Directors shall, by
resolution passed by majority of the Entire Board, designate two or more of
their number to constitute an Executive Committee to hold office at the pleasure
of the Board. The Executive Committee shall have reasonable access during normal
working hours to all significant information (including all books and records)
respecting the Corporation and its assets. Subject to the provisions of the
General Corporation Law, the Executive Committee shall have and may exercise all
of the powers of the Board of Directors in the management and affairs of
Corporation including, without limitation, the power and authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger in connection with the merger of the Corporation and any of
its subsidiaries.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President,
a Secretary, a Treasurer and such other officers as the Board may appoint,
including a Chairman, a Vice Chairman, a Chief Executive Officer, a Chief
Operating Officer, one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, who shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Board
may designate one or more Vice Presidents as Executive Vice Presidents or Senior
Vice Presidents and may use descriptive words or phrases to designate the
standing, seniority or areas of special competence of the Vice Presidents
elected or appointed by it. Any number of offices may be held by the same
person unless the Certificate of Incorporation or these Bylaws otherwise
provide.
5.2 Appointment. The officers of the Corporation shall be chosen by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that the officer
is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold
office for the term for which he or she is elected and until such officer's
successor is chosen and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such
<PAGE>
17
resignation shall take effect at the date of receipt of such notice or at such
later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The
resignation of an officer shall be without prejudice to the contract rights of
the Corporation, if any. Any officer elected or appointed by the Board may be
removed at any time, with or without cause, by vote of a majority of the Entire
Board. Any vacancy occurring in any office of the Corporation shall be filled
by the Board. The removal of an officer without cause shall be without
prejudice to the officer's contract rights, if any. The election or appointment
of an officer shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any
or all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall
be a Director and shall preside at all meetings of the Board at which he is
present and shall exercise such powers and perform such other duties as shall be
determined from time to time by the Board.
5.7 Vice Chairman. The Vice Chairman, if one shall have been
appointed, shall exercise such powers and perform such other duties as shall be
determined from time to time by the Board.
5.8 Chief Executive Officer. The Chief Executive Officer of the
Corporation shall have general supervision over the business of the Corporation,
subject, however, to the control of the Board and of any duly authorized
committee of Directors. The Chief Executive Officer shall preside at all
meetings of the Stockholders and at all meetings of the Board at which the
Chairman (if there be one) or the Vice Chairman (if there be one) is not
present. The Chief Executive Officer may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments except in
cases in which the signing and execution thereof shall be expressly delegated by
the Board or by these Bylaws to some other officer or agent of the Corporation
or shall be required by statute otherwise to be signed or executed and, in
general, the Chief Executive Officer shall perform all duties incident to the
office of Chief Executive Officer of a corporation and such other duties as may
from time to time be assigned to the Chief Executive Officer by the Board.
5.9 President. At the request of the Chief Executive Officer, or, in
the Chief Executive Officer's absence, at the request of the Board, the
President, if one shall have been appointed, shall perform all of the duties of
the Chief Executive Officer and, in so performing, shall have all the powers of,
and be subject to all restrictions upon, the Chief Executive Officer. The
President may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts or other instruments, except in cases in which the signing and
execution thereof shall be
<PAGE>
18
expressly delegated by the Board or by these Bylaws to some other officer or
agent of the Corporation, or shall be required by statute otherwise to be signed
or executed, and the President shall perform such other duties as from time to
time may be assigned to the President by the Board or by the Chief Executive
Officer.
5.10 Chief Operating Officer. At the request of the Chief Executive
Officer, or, in the Chief Executive Officer's absence, at the request of the
Board, the Chief Operating Officer, if one shall have been appointed, shall
perform all of the duties of the Chief Executive Officer and, in so performing,
shall have all the powers of, and be subject to all restrictions upon, the Chief
Executive Officer. The Chief Operating Officer may sign and execute in the name
of the Corporation deeds, mortgages, bonds, contracts or other instruments,
except in cases in which the signing and execution thereof shall be expressly
delegated by the Board or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by statute otherwise to be signed or executed,
and the Chief Operating Officer shall perform such other duties as from time to
time may be assigned to the Chief Operating Officer by the Board or by the Chief
Executive Officer.
5.11 Vice Presidents. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments,
except in cases in which the signing and execution thereof shall be expressly
delegated by the Board or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by statute otherwise to be signed or executed,
and each Vice President shall perform such other duties as from time to time may
be assigned to such Vice President by the Board, by the Chief Executive Officer
or by the President.
5.12 Secretary. The Secretary shall attend all meetings of the Board
and of the Stockholders and shall record all the proceedings of the meetings of
the Board and of the Stockholders in a book to be kept for that purpose, and
shall perform like duties for committees of the Board, when required. The
Secretary shall give, or cause to be given, notice of all special meetings of
the Board and of the Stockholders and shall perform such other duties as may be
prescribed by the Board or by the Chief Executive Officer, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant Secretary,
shall have authority to impress the same on any instrument requiring it, and
when so impressed the seal may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board may give general
authority to any other officer to impress the seal of the Corporation and to
attest the same by such officer's signature. The Secretary or an Assistant
Secretary may also attest all instruments signed by the Chief Executive Officer,
the President or any Vice President. The Secretary shall have charge of all the
books, records and papers of the Corporation relating to its organization and
management, shall see that the reports, statements and other documents required
by statute are properly kept and filed and, in general, shall perform all duties
incident to the office
<PAGE>
19
of Secretary of a corporation and such other duties as may from time to time be
assigned to the Secretary by the Board, by the Chief Executive Officer or by the
President.
5.13 Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositaries as may be designated by the
Board; against proper vouchers, cause such funds to be disbursed by checks or
drafts on the authorized depositaries of the Corporation signed in such manner
as shall be determined by the Board and be responsible for the accuracy of the
amounts of all moneys so disbursed; regularly enter or cause to be entered in
books or other records maintained for the purpose full and adequate account of
all moneys received or paid for the account of the Corporation; have the right
to require from time to time reports or statements giving such information as
the Treasurer may desire with respect to any and all financial transactions of
the Corporation from the officers or agents transacting the same; render to the
Chief Executive Officer or the Board, whenever the Chief Executive Officer or
the Board shall require the Treasurer so to do, an account of the financial
condition of the Corporation and of all financial transactions of the
Corporation; exhibit at all reasonable times the records and books of account to
any of the Directors upon application at the office of the Corporation where
such records and books are kept; disburse the funds of the Corporation as
ordered by the Board; and, in general, perform all duties incident to the office
of Treasurer of a corporation and such other duties as may from time to time be
assigned to the Treasurer by the Board, the Chief Executive Officer or by the
President.
5.14 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the Chief Executive Officer.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board, except as otherwise provided
in these Bylaws, may prospectively or retroactively authorize any officer or
officers, employee or employees or agent or agents, in the name and on behalf of
the Corporation, to enter into any contract or execute and deliver any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
6.2 Loans. The Board may prospectively or retroactively authorize
the Chief Executive Officer or any other officer, employee or agent of the
<PAGE>
20
Corporation to effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and, when authorized by the Board so to do,
may pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority
conferred by the Board may be general or confined to specific instances, or
otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation with such
banks, trust companies, investment banking firms, financial institutions or
other depositaries as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power to select may from time
to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chairman, the
Chief Executive Officer, the Chief Operating Officer or a Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and may be impressed with the seal of the Corporation or a facsimile
thereof. The signatures of the officers upon a certificate may be facsimiles,
if the certificate is countersigned by a transfer agent or registrar other than
the Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by the holder's duly authorized attorney appointed by a power of
attorney duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on
<PAGE>
21
surrender of the certificate or certificates representing such shares of capital
stock properly endorsed for transfer and upon payment of all necessary transfer
taxes. Every certificate exchanged, returned or surrendered to the Corporation
shall be marked "Canceled," with the date of cancellation, by the Secretary or
an Assistant Secretary or the transfer agent of the Corporation. A person in
whose name shares of capital stock shall stand on the books of the Corporation
shall be deemed the owner thereof to receive dividends, to vote as such owner
and for all other purposes as respects the Corporation. No transfer of shares
of capital stock shall be valid as against the Corporation, its Stockholders and
creditors for any purpose, except to render the transferee liable for the debts
of the Corporation to the extent provided by law, until such transfer shall have
been entered on the books of the Corporation by an entry showing from and to
whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his or her legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and to
advertise such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars, or such of them as the Board
may require, a bond in such form, in such sums and with such surety or sureties
as the Board may direct, to indemnify the Corporation and its transfer agents
and registrars against any claim that may be made against any of them on account
of the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Rules and Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws or with
the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder, including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like
<PAGE>
22
responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing such capital stock, a restriction,
even though permitted by Section 202 of the General Corporation Law, shall be
ineffective except against a person with actual knowledge of the restriction. A
restriction on the transfer or registration of transfer of capital stock of the
Corporation may be imposed either by the Certificate of Incorporation or by an
agreement among any number of Stockholders or among such Stockholders and the
Corporation. No restriction so imposed shall be binding with respect to capital
stock issued prior to the adoption of the restriction unless the holders of such
capital stock are parties to an agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such amounts
and at such time or times as it, in its discretion, shall deem advisable
giving due consideration to the condition of the affairs of the
Corporation;
7.7.2 may use and apply, in its discretion, any of the
surplus of the Corporation in purchasing or acquiring any shares of capital
stock of the Corporation, or purchase warrants therefor, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness; and
7.7.3 may set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think proper, as
a reserve fund to meet contingencies, or for equalizing dividends or for
the purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnity Undertaking. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a Director or
officer of the Corporation, or, at the request of the Corporation, is or was
serving as a director or
<PAGE>
23
officer of any other corporation or in a capacity with comparable authority or
responsibilities for any partnership, joint venture, trust, employee benefit
plan or other enterprise (an "Other Entity"), against judgments, fines,
penalties, excise taxes, amounts paid in settlement and costs, charges and
expenses (including attorneys' fees, disbursements and other charges). Persons
who are not Directors or officers of the Corporation (or otherwise entitled to
indemnification pursuant to the preceding sentence) may be similarly indemnified
in respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board at any time specifies that such persons
are entitled to the benefits of this Article 8.
8.2 Advancement of Expenses. The Corporation shall, from time to
time, reimburse or advance to any Director or officer or other person entitled
to indemnification hereunder the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in connection with any
Proceeding, in advance of the final disposition of such Proceeding; provided,
however, that, if required by the General Corporation Law, such expenses
incurred by or on behalf of any Director or officer or other person may be paid
in advance of the final disposition of a Proceeding only upon receipt by the
Corporation of an undertaking, by or on behalf of such Director or officer (or
other person indemnified hereunder), to repay any such amount so advanced if it
shall ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, the Certificate of
Incorporation, these Bylaws, any agreement, any vote of Stockholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
8.4 Continuation of Benefits. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall continue as to a person who has ceased to be a Director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the executors, administrators, legatees and distributees of such person.
8.5 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the
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24
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article 8, the Certificate of Incorporation or
under section 145 of the General Corporation Law or any other provision of law.
8.6 Binding Effect. The provisions of this Article 8 shall be a
contract between the Corporation, on the one hand, and each Director and officer
who serves in such capacity at any time while this Article 8 is in effect and
any other person entitled to indemnification hereunder, on the other hand,
pursuant to which the Corporation and each such Director, officer or other
person intend to be, and shall be legally bound. No repeal or modification of
this Article 8 shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.7 Procedural Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board, its
independent legal counsel and its Stockholders) to have made a determination
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an
actual determination by the Corporation (including its Board, its independent
legal counsel and its Stockholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.8 Service Deemed at Corporation's Request. Any Director or officer
of the Corporation serving in any capacity (a) another corporation of which a
majority of the shares entitled to vote in the election of its directors is
held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
8.9 Election of Applicable Law. Any person entitled to be
indemnified or to reimbursement or advancement of expenses as a matter of right
pursuant to this Article 8 may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on
the basis of the applicable law in effect at the
<PAGE>
25
time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the
Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if no such notice is given, the
right to indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or reimbursement
or advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. There shall be kept at the principal office
of the Corporation correct and complete records and books of account recording
the financial transactions of the Corporation and minutes of the proceedings of
the Stockholders, the Board and any committee of the Board. The Corporation
shall keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
Stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
Stockholders for inspection.
ARTICLE 10
SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
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26
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and may be changed,
by resolution of the Board.
ARTICLE 12
PROXIES AND CONSENTS
Unless otherwise directed by the Board, the Chairman, the Vice
Chairman, the Chief Executive Officer, the Chief Operating Officer, the
President, any Vice President, the Secretary or the Treasurer, or any one of
them, may execute and deliver on behalf of the Corporation proxies respecting
any and all shares or other ownership interests of any Other Entity owned by the
Corporation appointing such person or persons as the officer executing the same
shall deem proper to represent and vote the shares or other ownership interests
so owned at any and all meetings of holders of shares or other ownership
interests, whether general or special, and/or to execute and deliver consents
respecting such shares or other ownership interests; or any of the aforesaid
officers may attend any meeting of the holders of shares or other ownership
interests of such Other Entity and thereat vote or exercise any or all other
powers of the Corporation as the holder of such shares or other ownership
interests.
ARTICLE 13
EMERGENCY Bylaws
Unless the Certificate of Incorporation provides otherwise, the
following provisions of this Article 13 shall be effective during an emergency,
which is defined as when a quorum of the Corporation's Directors cannot be
readily assembled because of some catastrophic event. During such emergency:
13.1 Notice to Board Members. Any one member of the Board or any one
of the following officers: Chairman, Vice Chairman, Chief Executive Officer,
Chief Operating Officer, President, any Vice President, Secretary, or Treasurer,
may call a meeting of the Board. Notice of such meeting need be given only to
those Directors whom it is practicable to reach, and may be given in any
practical manner, including by publication and radio. Such notice shall be
given at least six hours prior to commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of the
Corporation present at the emergency Board meeting, as is necessary to achieve a
quorum, shall be considered to be Directors for the meeting, and shall so serve
in
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27
order of rank, and within the same rank, in order of seniority. In the event
that less than a quorum of the Directors are present (including any officers who
are to serve as Directors for the meeting), those Directors present (including
the officers serving as Directors) shall constitute a quorum.
13.3 Actions Permitted To Be Taken. The Board as constituted in
Section 13.2, and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer of the
Corporation;
13.3.2 delegate to any officer or Director, any of the powers of
the Board;
13.3.3 designate lines of succession of officers and agents, in
the event that any of them are unable to discharge their duties;
13.3.4 relocate the principal place of business, or designate
successive or simultaneous principal places of business; and
13.3.5 take any other convenient, helpful or necessary action to
carry on the business of the Corporation.
ARTICLE 14
AMENDMENTS
These Bylaws may be amended or repealed and new Bylaws may be adopted
by a vote of the holders of shares entitled to vote in the election of Directors
or by the Board. Any Bylaws adopted or amended by the Board may be amended or
repealed by the Stockholders entitled to vote thereon.
<PAGE>
BIG CITY RADIO, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CLASS A COMMON STOCK
CUSIP
THIS IS TO CERTIFY THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE CLASS A COMMON STOCK, $.01 PAR
VALUE PER SHARE, OF
BIG CITY RADIO, INC.
transferable on the books of the Corporation by the registered holder hereof in
person or by its duly authorized attorney, upon surrender of this certificate
properly endorsed.
This certificate and the shares represented hereby are issued and shall be
held subject to all of the provisions of the Amended and Restated Certificate
of Incorporation, as amended, of the Corporation (a copy of which is on file
with the Transfer Agent) to all of which the holder of this certificate, by
acceptance hereof, assents.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its authorized officers.
Dated:
SECRETARY
PRESIDENT
<PAGE>
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
