<PAGE>
As filed with the Securities and Exchange Commission on May 27, 1998
Registration No. 333-50331
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SFX ENTERTAINMENT, INC.*
(Exact Name of Registrant as Specified in its Charter)
* A complete list of registrants is set forth on the following pages
DELAWARE 7922 13-3977880
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Incorporation Classification Code Identification
or Organization) Number) Number)
----------------------
650 MADISON AVENUE, 16TH FLOOR
NEW YORK, NEW YORK 10022
(212) 838-3100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
ROBERT F.X. SILLERMAN, EXECUTIVE CHAIRMAN
SFX ENTERTAINMENT, INC.
650 MADISON AVENUE, 16TH FLOOR
NEW YORK, NEW YORK 10022
(212) 838-3100
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
----------------------
Copy of all Communications to:
HOWARD M. BERKOWER, ESQ.
BAKER & MCKENZIE
805 THIRD AVENUE, 30TH FLOOR
NEW YORK, NEW YORK 10022
(212) 751-5700
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
----------------------
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
----------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
===============================================================================
<PAGE>
TABLE OF REGISTRANTS
Unless specified otherwise, the mailing address and phone number of the
additional registrants is c/o SFX Entertainment, Inc., 650 Madison Avenue, 16th
Floor, New York, New York 10022; (212) 838-3100. The agent for service for the
additional registrants is Robert F.X. Sillerman, c/o SFX Entertainment, Inc.,
650 Madison Avenue, 16th Floor, New York, New York 10022. The primary standard
industry classification number for all registrants is 7922.
STATE OR OTHER
JURISDICTION OF I.R.S. EMPLOYER
NAME, ADDRESS AND TELEPHONE INCORPORATION OR IDENTIFICATION
NUMBER ORGANIZATION NUMBER
- --------------------------------------- ---------------- ---------------
SFX Entertainment, Inc. Delaware 13-3977880
AKG, Inc.(3) California 94-2628377
American Broadway, Inc.(1) Texas 76-0475585
Ardee Festivals N.J., Inc. New Jersey 13-3568617
Ardee Productions, Ltd. New York 13-2593666
Atlanta Concerts, Inc. Delaware 13-3969854
Beach Concerts, Inc. New York 13-3155946
BG Presents, Inc.(3) California Pending
BGP Acquisition, L.L.C. Delaware Pending
Bill Graham Enterprises, Inc.(3) California 94-1734238
Bill Graham Presents, Inc.(3) California 94-1650714
Bill Graham Management, Inc.(3) California 94-3129254
Broadway Concerts, Inc. New York 13-3748971
Cooley and Conlon Management Co. Georgia 58-1762653
Concerts, Inc.(2) Nevada 86-0871933
Conn Ticketing Company Connecticut 06-1450528
Connecticut Amphitheater Development Connecticut 06-1416442
Corporation
Connecticut Concerts Incorporated Connecticut 13-3748975
Connecticut Performing Arts, Inc. Connecticut 06-1411118
Connecticut Performing Arts Partners Connecticut 06-1420929
Contemporary Group Acquisition Corp. Delaware 13-3991262
Contemporary Group, Inc.(4) Missouri 43-1701968
Contemporary Marketing, Inc.(4) Missouri 43-1248261
Contemporary Productions Incorporated(4) Missouri 43-1243654
Contemporary Sports Incorporated(4) Missouri 43-1245258
Deer Creek Amphitheater Concerts, Inc. Delaware 13-3951407
Deer Creek Amphitheater Concerts, L.P. Delaware 13-3951407
Delsener/Slater Enterprises, Ltd. New York 13-2560412
Dumb Deal, Inc. New York 13-2892073
Entertainment Performing Arts, Inc.(1) Texas 76-0297763
(ii)
<PAGE>
STATE OR OTHER
JURISDICTION OF I.R.S. EMPLOYER
NAME, ADDRESS AND TELEPHONE INCORPORATION OR IDENTIFICATION
NUMBER ORGANIZATION NUMBER
- --------------------------------------- ---------------- ---------------
Exit 116 Revisited, Inc. New Jersey 13-3886101
Festival Productions, Inc.(1) Texas 74-1975839
Fillmore Corporation(3) Delaware 94-1687122
Fillmore Fingers, Inc.(3) California 94-2998317
FPI Concerts, Inc. Delaware 13-3933969
GSAC Partners Delaware 76-051636
High Cotton, Inc. Georgia 58-1802140
In House Tickets, Inc. New York 13-3077977
Irving Plaza Concerts, Inc. Delaware 13-3938355
Murat Center Concerts, Inc. Delaware 13-3948205
Murat Center Concerts, L.P. Delaware 13-3951403
NOC, Inc. Connecticut 13-3738288
Northeast Ticketing Company Connecticut 06-1450528
Old PCI, Inc.(1) Texas 76-0392584
PACE AEP Acquisition, Inc.(1) Texas 01-477749
PACE Amphitheater Management, Inc.(1) Texas 76-0474961
PACE Amphitheaters, Inc.(1) Texas 76-0250531
PACE Bayou Place, Inc.(1) Texas 76-0543571
PACE Communications, Inc.(1) Texas 76-0545041
PACE Concerts GP, Inc.(1) Texas 76-0522081
PACE Concerts, Ltd.(1) Texas 76-0522083
PACE Entertainment Corporation(1) Texas 74-1545442
PACE Entertainment GP Corp.(1) Texas 76-0522082
PACE Entertainment Group, Ltd.(1) Texas 76-0522084
PACE Milton Keynes, Inc.(1) Texas 76-0412384
PACE Motor Sports, Inc.(1) Texas 74-1990536
PACE Music Group, Inc.(1) Texas 76-0108294
PACE Productions, Inc.(1) Texas 76-0287817
PACE Theatrical Group, Inc.(1) Texas 76-0235495
PACE Touring, Inc.(1) Texas 76-0406630
PACE U.K. Holding Corporation(1) Texas 76-0412383
PACE Variety Entertainment, Inc.(1) Texas 76-0546383
Pavilion Partners Delaware 76-0306688
PEC, Inc.(2) Nevada 86-0871934
Polaris Amphitheater Concerts, Inc. Delaware 13-3948206
(iii)
<PAGE>
STATE OR OTHER
JURISDICTION OF I.R.S. EMPLOYER
NAME, ADDRESS AND TELEPHONE INCORPORATION OR IDENTIFICATION
NUMBER ORGANIZATION NUMBER
- --------------------------------------- ---------------- ---------------
PTG-Florida, Inc.(7) Texas 58-1812340
QN Corp. Connecticut Pending
SFX Broadcasting of the Midwest, Inc. Delaware 13-3950590
SFX Concerts, Inc. Delaware 13-3909179
SFX Network Group, L.L.C. Delaware Pending
SJS Entertainment Corporation(5) Pennsylvania 23-2828323
Shoreline Amphitheatre, Ltd.(3) California 94-2997795
Shoreline Amphitheatre Partners(3) California 94-2997214
SM/PACE, Inc.(1) Texas 74-1855786
Southeast Ticketing Company Connecticut 06-1450527
Southern Promotions, Inc. Georgia 58-1421506
Sunshine Concerts, L.L.C. Delaware 13-3951409
Sunshine Designs, Inc. Delaware 13-3948203
Sunshine Designs, L.P. Delaware 13-3951402
Suntex Acquisition, Inc. Delaware 13-3948208
Suntex Acquisition, L.P. Delaware 13-3951401
The Album Network, Inc.(6) California 93-3297803
Touring Productions, Inc.(1) Texas 76-0161212
Tuneful Company, Inc.(1) Texas Pending
Westbury Music Fair, L.L.C. Delaware 13-3984613
Wolfgang Records(3) California 94-3223917
- --------------
The mailing addresses and phone numbers for the indicated registrants are as
follows:
(1) 515 Post Oak Boulevard, Suite 300, Houston, Texas 77027; (713) 693-8600.
(2) 1325 Airmotive Way, Suite 130, Reno, Nevada 89502; (702) 322-2221.
(3) 260 Fifth Avenue, San Francisco, California 94142; (415) 541-0800.
(4) 1401 South Brentwood Boulevard, St. Louis, Missouri 63144; (314)
962-4000.
(5) 116 East 27th Street, 10th Floor, New York, New York 10016; (212)
679-3200.
(6) 120 North Victory Boulevard, 3rd Floor, Burbank, California; 91502 (818)
955-4000.
(7) 100 South Biscayne Blvd., Suite 1200, Miami, Florida 33131; (305)
379-2700.
(iv)
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement (Reg. No.
333-50331) on Form S-4 makes no change to such registration statement except to
file certain exhibits which were not previously included. Such exhibits are
identified on the exhibit index included herewith.
<PAGE>
PART II
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
EXHIBIT NO. DESCRIPTION
2.1 Distribution Agreement between SFX Entertainment and SFX
Broadcasting (incorporated by reference to Amendment No. 1 to
Form S-1 (File No. 333-50079) filed with the SEC)
2.2 Tax Sharing Agreement between SFX Entertainment and SFX
Broadcasting (incorporated by reference to Amendment No. 1 to
Form S-1 (File No. 333-50079) filed with the SEC).
2.3 Employee Benefits Agreement between SFX Entertainment and SFX
Broadcasting (incorporated by reference to Amendment No. 1 to
Form S-1 (File No. 333-50079) filed with the SEC).
3.1 Amended and Restated Certificate of Incorporation of SFX
Entertainment (incorporated by reference to Amendment No. 1 to
Form S-1 (File No. 333-50079) filed with the SEC)
3.2 Bylaws of SFX Entertainment (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43387) filed with
the SEC on March 11, 1998).
3.3 Certificate of Amendment to the Certificate of Incorporation of
the Company, as filed with the Secretary of State of Delaware on
February 25, 1998 (incorporated by reference to Report on Form 8-K
(File No. 333-43287) filed with the SEC on March 11, 1998) 3.4
Certificate of Designations relating to the Series A Preferred
Stock of the Company as filed with the Secretary of State of
Delaware on February 27, 1998 (incorporated by reference to Report
on Form 8-K (File No. 333-43287) filed with the SEC on March 11,
1998).
3.5* Restated Articles of Incorporation of AKG, Inc.
3.6* Bylaws of AKG, Inc.
3.7+ Articles of Incorporation of American Broadway, Inc.
3.8+ Bylaws of American Broadway, Inc.
3.9+ Certificate of Incorporation of Ardee Festivals N.J., Inc.
3.10+ Bylaws of Ardee Festivals N.J., Inc.
3.11* Certificate of Incorporation of Ardee Productions, Ltd.
3.12+ Bylaws of Ardee Productions, Ltd.
3.13+ Certificate of Incorporation of Atlanta Concerts, Inc.
3.13A+ Bylaws of Atlanta Concerts, Inc.
3.13B+ Certificate of Incorporation of Beach Concerts, Inc.
3.14+ Bylaws of Beach Concerts, Inc.
3.15+ Certificate of Formation of BGP Acquisition, LLC.
3.16* Articles of Incorporation of Bill Graham Enterprises, Inc.
3.17+ Amended and Restated Bylaws of Bill Graham Enterprises, Inc.
3.18* Articles of Incorporation of Bill Graham Management, Inc.
3.19* Bylaws of Bill Graham Management, Inc.
3.20* Articles of Incorporation of Bill Graham Presents, Inc.
3.21* Amended and Restated Bylaws of Bill Graham Presents, Inc.
3.22* Articles of Incorporation of BG Presents, Inc.
3.23* Bylaws of BG Presents, Inc.
3.24+ Certificate of Incorporation of Broadway Concerts, Inc.
3.25* Bylaws of Broadway Concerts, Inc.
3.26* Articles of Incorporation of Cooley and Conlon Management Co.
3.27* Bylaws of Cooley and Conlon Management Co.
3.28* Articles of Incorporation of Concerts, Inc.
3.29* Bylaws of Concerts, Inc.
3.30* Certificate of Incorporation of Connecticut Amphitheater
Development Corporation
3.31* Bylaws of Connecticut Amphitheater Development Corporation
3.32* Certificate of Incorporation of Connecticut Concerts, Incorporated.
3.33+ Bylaws of Connecticut Concerts, Incorporated.
3.34+ Certificate of Incorporation of Connecticut Performing Arts, Inc.
3.35* Bylaws of Connecticut Performing Arts, Inc.
3.36 Reserved
3.37 Reserved
3.38* Certificate of Incorporation of Contemporary Group Acquisition
Corp.
II-1
<PAGE>
3.39+ Bylaws of Contemporary Group Acquisition Corp.
3.40* Articles of Incorporation of Contemporary Group, Inc. (f/k/a
Innovative Training and Education Concepts Corp)
3.41+ Bylaws of Contemporary Group, Inc. (f/k/a Innovative Training and
Education Concepts Corp.)
3.42* Certificate of Incorporation of Contemporary Marketing, Inc.
3.43* Bylaws of Contemporary Marketing, Inc.
3.44* Certificate of Incorporation of Contemporary Productions, Inc.
3.45* Bylaws of Contemporary Productions, Incorporated
3.46* Certificate of Incorporation of Contemporary Sports, Incorporated
3.47* Bylaws of Contemporary Sports, Incorporated
3.48* Certificate of Incorporation of Deer Creek Amphitheater Concerts,
Inc.
3.49* Bylaws of Deer Creek Amphitheater Concerts, Inc.
3.50* Certificate of Limited Partnership of Deer Creek Amphitheater
Concerts, LP.
3.51* Certificate of Incorporation of Delsener/Slater Enterprises, Ltd.
3.52* Bylaws of Delsener/Slater Enterprises, Ltd.
3.53* Certificate of Incorporation of Dumb Deal, Inc.
3.54* Bylaws of Dumb Deal, Inc.
3.55* Articles of Incorporation of Entertainment Performing Arts, Inc.
3.56* Bylaws of Entertainment Performing Arts, Inc.
3.57* Certificate of Incorporation of Exit 116 Revisited, Inc.
3.58* Bylaws of Exit 116 Revisited, Inc.
3.59+ Articles of Incorporation of Festival Productions, Inc.
3.60++ Bylaws of Festival Productions, Inc.
3.61* Restated Certificate of Incorporation of Fillmore Corporation
3.62* Bylaws of Fillmore Corporation
3.63* Restated Articles of Incorporation of Fillmore Fingers, Inc.
3.64* Bylaws of Fillmore Fingers, Inc.
3.65* Certificate of Incorporation of FPI Concerts, Inc.
3.66* Bylaws of FPI Concerts, Inc.
3.67 Reserved
3.68* Articles of Incorporation of High Cotton, Inc.
3.69* Bylaws of High Cotton, Inc.
3.70* Certificate of Incorporation of In House Tickets, Inc.
3.71* Bylaws of In House Tickets, Inc.
3.72* Certificate of Incorporation of Irving Plaza Concerts, Inc.
3.73* Bylaws of Irving Plaza Concerts, Inc.
3.74* Certificate of Incorporation of Murat Center Concerts, Inc.
3.75* Bylaws of Murat Center Concerts, Inc.
3.76* Certificate of Limited Partnership of Murat Center Concerts, LP.
3.77* Certificate of Incorporation of NOC, Inc.
3.78* Bylaws of NOC, Inc.
3.79* Certificate of Incorporation of Northeast Ticketing Company.
3.80* Bylaws of Northeast Ticketing Company
3.81* Articles of Incorporation of Old PCI, Inc. f/k/a PACE Concerts,
Inc.
3.82+ Bylaws of Old PCI, Inc. f/k/a PACE Concerts, Inc.
3.83* Articles of Incorporation of PACE AEP Acquisition, Inc.
3.84* Bylaws of PACE AEP Acquisition, Inc.
3.85* Articles of Incorporation of PACE Amphitheaters, Inc.
3.86* Bylaws of PACE Amphitheaters, Inc.
3.87* Articles of Incorporation of PACE Amphitheater Management, Inc.
3.88* Bylaws of PACE Amphitheater Management, Inc.
3.89* Articles of Incorporation of PACE Bayou Place, Inc.
II-2
<PAGE>
3.90* Bylaws of PACE Bayou Place, Inc.
3.91* Articles of Incorporation of PACE Communications, Inc.
3.92* Bylaws of PACE Communications, Inc.
3.93* Articles of Incorporation of PACE Concerts GP, Inc.
3.94* Bylaws of PACE Concerts GP, Inc.
3.95* Certificate of Limited Partnership for PACE Concerts, Ltd.
3.96 Reserved.
3.97+ Restated Articles of Incorporation of PACE Entertainment
Corporation (f/k/a PACE Management Corporation)
3.98+ Revised and Restated Bylaws of PACE Entertainment Corporation
3.99* Articles of Incorporation of PACE Entertainment GP Corp.
3.100* Bylaws of PACE Entertainment GP Corp.
3.101+ Certificate of Limited Partnership for PACE Entertainment Group,
Ltd.
3.102 Reserved
3.103+ Articles of Incorporation of PACE Milton Keynes, Inc.
3.104+ Bylaws of PACE Milton Keynes, Inc.
3.105+ Articles of Incorporation of PACE Motor Sports, Inc.
3.106+ Bylaws of PACE Motor Sports, Inc.
3.107+ Articles of Incorporation of PACE Music Group, Inc. (f/k/a PACE
Entertainment Group, Inc.)
3.108+ Bylaws of PACE Music Group, Inc. (f/k/a/ PACE Entertainment Group,
Inc.)
3.109+ Articles of Incorporation of PACE Productions, Inc. (f/k/a The
Entertainment Group, Inc.)
3.110+ Bylaws of PACE Productions, Inc. (f/k/a The Entertainment Group,
Inc.)
3.111+ Articles of Incorporation of PACE Theatrical Group, Inc.
3.112+ Bylaws of PACE Theatrical Group, Inc.
3.113+ Articles of Incorporation of PACE Touring, Inc. (f/k/a Innovative
Media Corporation)
3.114+ Bylaws of PACE Touring, Inc. (f/k/a Innovative Media Corporation)
3.115+ Articles of Incorporation of PACE Variety Entertainment, Inc.
3.116+ Bylaws of PACE Variety Entertainment, Inc.
3.117+ Articles of Incorporation of PACE U.K. Holding Corporation
3.118+ Bylaws of PACE U.K. Holding Corporation
3.119 Reserved.
3.119A+ Articles of Incorporation of PEC, Inc.
3.119B+ Bylaws of PEC, Inc.
3.120+ Certificate of Incorporation of Polaris Amphitheater Concerts,
Inc.
3.120A+ Bylaws of Polaris Amphitheater Concerts, Inc.
3.121+ Articles of Incorporation of PTG-Florida, Inc.
3.122+ Bylaws of PTG-Florida, Inc.
3.123 Reserved
3.124+ Certificate of Incorporation of QN Corp.
3.125+ Bylaws of QN Corp.
3.126+ Certificate of Incorporation of SFX Broadcasting of the Midwest,
Inc.
3.127+ Bylaws of SFX Broadcasting of the Midwest, Inc.
3.128+ Certificate of Incorporation of SFX Concerts, Inc. (f/k/a
Delsener/Slater Enterprises, Inc.)
3.129+ Bylaws of SFX Concerts, Inc. (f/k/a Delsener/Slater Enterprises,
Inc.)
3.129A+ Certificate of Incorporation of SFX Delaware, Inc.
3.129B+ Bylaws of SFX Delaware, Inc.
3.130+ Certificate of Formation of SFX Network Group, LLC.
3.131+ Articles of Incorporation of Shoreline Amphitheatre, Ltd.
3.132+ Bylaws of Shoreline Amphitheatre, Ltd.
3.133+ Certificate of Limited Partnership of Shoreline Amphitheatre
Partners
3.134+ Articles of Incorporation of SJS Entertainment Corporation
3.135+ Bylaws of SJS Entertainment Corporation
II-3
<PAGE>
3.136+ Articles of Incorporation of SM/PACE, Inc. (f/k/a Pace Concerts,
Inc.)
3.137+ Bylaws of SM/PACE, Inc. (f/k/a Pace Concerts, Inc.)
3.138+ Certificate of Incorporation of Southeast Ticketing Company.
3.138A+ Bylaws of Southeast Ticketing Company
3.139+ Articles of Incorporation of Southern Promotions, Inc.
3.140+ Bylaws of Southern Promotions, Inc.
3.141+ Certificate of Formation of Sunshine Concerts, LLC.
3.142+ Certificate of Incorporation of Sunshine Designs, Inc.
3.143+ Bylaws of Sunshine Designs, Inc.
3.144+ Certificate of Limited Partnership of Sunshine Designs, LP
3.145+ Certificate of Incorporation of Suntex Acquisition, Inc.
3.146+ Bylaws of Suntex Acquisition, Inc.
3.147+ Certificate of Limited Partnership of Suntex Acquisition, LP
3.148+ Certificate of Incorporation of The Album Network, Inc.
3.149+ Bylaws of The Album Network Inc.
3.150+ Articles of Incorporation of Touring Productions, Inc.
3.151+ Bylaws of Touring Productions, Inc.
3.152+ Articles of Incorporation of Tuneful Company, Inc.
3.153+ Bylaws of Tuneful Company, Inc.
3.154+ Certificate of Formation of Westbury Music Fair, LLC (f/k/a MF
Acquisition, LLC)
3.155+ Articles of Incorporation of Wolfgang Records
3.156+ Bylaws of Wolfgang Records
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ---------- -----------------------------------------------------------------------------------------------
<S> <C>
4.1 Indenture relating to the 9 1/8% Senior Subordinated Notes due 2008 (incorporated by
reference to Current Report on Form 8-K (File No. 333-43287) filed with the SEC on March 11, 1998)
4.2 Registration Rights Agreement relating to the 9 1/8% Senior Subordinated Notes due 2008
(incorporated by reference to Current Report on Form 8-K (File No. 333-43287) filed with the SEC on
March 11, 1998)
5.1++ Opinion of Baker & McKenzie.
10.1 Stock Purchase Agreement, dated as of October 11, 1996, by and among Delsener/Slater
Enterprises, Ltd., Beach Concerts, Inc., Connecticut Concerts Incorporated, Broadway
Concerts, Inc., Arden Productions, Ltd., In-house Tickets, Inc., Exit 116 Revisited, Inc., Ron
Delsener, Mitch Slater and SFX Broadcasting, Inc. (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.2 License Agreement, dated January 29, 1990, by and between the State of New York and
Beach Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File
No. 333-43287) filed with the SEC)
10.3 Amendment to License Agreement of January 29, 1990, dated as of April 11, 1997, by and
between the State of New York and Beach Concerts, Inc. (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.4 Lease Agreement, Easement Agreement and Declaration of Restrictive Covenants dated as of
May 1, 1996, by and between New Jersey Highway Authority and GSAC Partners
(incorporated by reference to Registration Statement on Form S-1 (File No. 333-43287) filed
with the SEC)
10.5 Partnership Agreement, dated as of November 18, 1996, by and between Pavilion Partners
Exit 116 Revisited, Inc. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.6 Asset Purchase and Sale Agreement, dated June 23, 1997, by and among Sunshine Concerts,
L.L.C., SFX Broadcasting, Inc., Sunshine Promotions, Inc., P. David Lucas and Steven P.
Sybesma (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.7 Asset Purchase and Sale Agreement, dated as of June 23, 1997, by and among Suntex
Acquisition, L.P., SFX Broadcasting, Inc., Suntex, Inc., P. David Lucas, Steven P. Sybesma,
Greg Buttrey and John Valant (incorporated by reference to Registration Statement on Form
S-1 (File No. 333-43287) filed with the SEC)
10.8 Asset Purchase and Sale Agreement, dated as of June 23, 1997, by and among Deer Creek
Amphitheater Concerts, L.P., SFX Broadcasting, Inc., Deer Creek Partners, L.P., Sand Creek
Partners, L.P., Sand Creek, Inc., P. David Lucas and Steven P. Sybesma (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.9 Asset Purchase and Sale Agreement, dated as of June 23, 1997, by and among Murat Centre
Concerts, L.P., SFX Broadcasting, Inc., Murat Centre L.P., P. David Lucas and Steven P.
Sybesma (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.10 Asset Purchase and Sale Agreement, dated June 23, 1997, by and among Polaris
Amphitheater Concerts, Inc., SFX Broadcasting, Inc., Polaris Amphitheater Limited
Partnership and certain of the partners of Polaris Amphitheater Limited Partnership
(incorporated by reference to Registration Statement on Form S-1 (File No. 333-43287) filed
with the SEC)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ -----------------------------------------------------------------------------------------------
<S> <C>
10.11 Asset Purchase and Sale Agreement, dated as of June 23, 1997, by and among Sunshine
Design, L.P., SFX Broadcasting, Inc., Tourdesign, Inc., P. David Lucas and Steven P. Sybesma
(incorporated by reference to Registration Statement on Form S-1 (File No. 333-43287) filed
with the SEC)
10.12 Indenture of Lease, dated as of September 1, 1995, by and between Murat Temple
Association, Inc. and Murat Centre, L.P. (incorporated by reference to Registration Statement
on Form S-1 (File No. 333-43287) filed with the SEC)
10.13 Agreement of Merger, dated as of February 12, 1997, by and among SFX Broadcasting, Inc.,
NOC Acquisition Corp., Cadco Acquisition Corp., QN-Acquisition Corp., Nederlander of
Connecticut, Inc., Connecticut Amphitheater Development Corporation, QN Corp.,
Connecticut Performing Arts, Inc., Connecticut Performing Arts Partners and the
Stockholders of Nederlander of Connecticut, Inc., Connecticut Amphitheater Development
Corporation and QN Corp. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.14 Agreement of Merger, dated as of February 14, 1997, by and among SFX Broadcasting, Inc.,
NOC Acquisition Corp., Cadco Acquisition Corp., QN-Acquisition Corp., Nederlander of
Connecticut, Inc., Connecticut Amphitheater Development Corporation, QN Corp.,
Connecticut Performing Arts, Inc., Connecticut Performing Arts Partners and the
Stockholders of Nederlander of Connecticut, Inc., Connecticut Amphitheater Development
Corporation and QN Corp. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.15 Second Amendment of Agreement of Merger, dated as of March 19, 1997, by and among SFX
Broadcasting, Inc., NOC Acquisition Corp., Cadco Acquisition Corp., QN-Acquisition Corp.,
Nederlander of Connecticut, Inc., Connecticut Amphitheater Development Corporation, QN
Corp., Connecticut Performing Arts, Inc., Connecticut Performing Arts Partners and the
Stockholders of Nederlander of Connecticut, Inc., Connecticut Amphitheater Development
Corporation and QN Corp. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.16 Lease Agreement, dated as of September 14, 1994, by and between The City of Hartford and
Connecticut Performing Arts Partners (incorporated by reference to Registration Statement
on Form S-1 (File No. 333-43287) filed with the SEC)
10.17 Agreement and Plan of Merger and Asset Purchase Agreement, dated as of December 10,
1997, by and among SFX Entertainment, Inc., Contemporary Investments Corporation,
Contemporary Investments of Kansas, Inc., Continental Entertainment Associates, Inc.,
Capital Tickets, LP, Dialtix, Inc., Contemporary International Productions Corporation, Steven
F. Schankman Living Trust, dated 10/22/82, Irving P. Zuckerman Living Trust, dated 11/24/81,
Steven F. Schankman and Irving P. Zuckerman (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.18 Lease Agreement, dated December 13, 1992, by and between Wyandotte County, Kansas and
Wyandotte County Parks Board and Sandstone Amphitheater Joint Venture (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.19 Stock Purchase Agreement, dated as of December 11, 1997, among each of the shareholders
of BGP Presents, Inc. and BGP Acquisitions, LLC (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.20 Amphitheater Lease and Agreement, dated June 20, 1986, between the City of Mountain
View, the Mountain View Shoreline Regional Park Community and Shoreline Amphitheater
Partners (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ ----------------------------------------------------------------------------------------------
<S> <C>
10.21 Stock and Asset Purchase Agreement, dated December 2, 1997, between and among SFX
Network Group, L.L.C. and SFX Entertainment, Inc., and Elias N. Bird, individually and as
Trustee under the Bird Family Trust u/d/o 11/18/92, Gary F. Bird, individually and as Trustee
under the Gary F. Bird Corporation Trust u/d/o 2/4/94, Stephen R. Smith, individually and as
Trustee under the Smith Family Trust u/d/o 7/17/89, June E. Brody, Steven A. Saslow and The
Network 40, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.22 Purchase and Sale Agreement, dated as of December 15, 1997, by and among Alex Cooley, S.
Stephen Selig, III, Peter Conlon, Southern Promotions, Inc., High Cotton, Inc., Cooley and
Conlon Management, Inc., Buckhead Promotions, Inc., Northern Exposure, Inc., Pure Cotton,
Inc., Interfest, Inc., Concert/Southern Chastain Promotions Joint Venture, Roxy Ventures
Joint Venture and SFX Concerts, Inc. (incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.23 Stock Purchase Agreement, dated as of December 12, 1997 by and between Pace
Entertainment Corporation and SFX Entertainment, Inc. (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.24 Agreement and Plan of Merger, dated as of August 24, 1997, as amended on February 9,
1998, among SFX Buyer, SFX Buyer Sub and SFX (composite version) (incorporated by
reference to Report on Form 8-K (File No. 333-43287) filed with the SEC on March 11, 1998)
10.25 Reserved
10.26 Non-Negotiable Promissory Note, dated as of June 23, 1997, between SFX (as maker) and
Sunshine Promotions, Inc. (as payee)(incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.31 Operator Lease Agreement, dated as of September 26, 1989, by and between the City of
Phoenix and The Westside Amphitheatre Corp. (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.32 Addendum to Operator Lease Agreement, dated as of September 26, 1989, by and between
the City of Phoenix and Pavilion Partners (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.33 Memorandum of Lease, dated as of April 1, 1994, by and between the City of Phoenix and
Pavilion Partners (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.34 Lease Agreement, dated as of February 9, 1994, by and between New Jersey Development
Authority and Sony Music/Pace Partnership (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.35 First Amendment to Lease Agreement, dated as of March 11, 1994, by and between New
Jersey Economic Development and Sony Music/Pace Partnership (incorporated by reference
to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.36 Second Amendment to Lease Agreement, dated as of June 7, 1994, by and between New
Jersey Economic Development Authority and Pavilion Partners (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.37 Third Amendment to Lease Agreement, dated as of March 15, 1995, by and between New
Jersey Economic Development Authority and Pavilion Partners (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ --------------------------------------------------------------------------------------------
<S> <C>
10.38 Fourth Amendment|P to Lease Agreement, dated as of March 11, 1997, by and between the
New Jersey Economic Development Authority and Pavilion Partners (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.39 Three Way Agreement, dated as of April 28, 1995, by and between New Jersey Economic
Development Authority, South Jersey Performing Arts Center, Inc. and Pavilion Partners
(incorporated by reference to Registration Statement on Form S-1 (File No. 333-43287) filed
with the SEC)
10.40 Lease Agreement, dated as of December 1, 1989, between Crossroads Properties,
Incorporated and Pace Entertainment Group, Inc. (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.41 Assignment of Ground Lease, dated as of April 6, 1990, by and between Pace Entertainment
Group, Inc. and YM/Pace Partnership (incorporated by reference to Registration Statement
on Form S-1 (File No. 333-43287) filed with the SEC)
10.42 Partnership Agreement, dated as of July 1, 1991, by and between SM/PACE Partnership and
CDC Amphitheaters/I, Inc. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.43 First Amendment to Partnership Agreement, dated as of January 31, 1992, by and between
SM/PACE Partnership and CDC Amphitheaters/I, Inc. (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.44 Lease Agreement, dated as of December 1, 1990, by and between the City of Raleigh, North
Carolina and Sony Music/Pace Partnership (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.45 Amendment to Lease Agreement, dated as of November 15, 1995, by and between Walnut
Creek Amphitheater Partnership and City of Raleigh, North Carolina (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.46 Mutual Recognition Agreement, dated as of December 1, 1990, by and among Walnut Creek
Amphitheater Financing Assistance Corporation, First Union National Bank of North
Carolina, City of Raleigh, North Carolina and Sony Music/Pace Partnership (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.47 Mutual Recognition Agreement, dated as of December 1, 1990, by and among Walnut Creek
Amphitheater Financing Assistance Corporation, First Union National Bank of North
Carolina, City of Raleigh, North Carolina and Sony Music/Pace Partnership (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.48 Partnership Agreement, dated as of February 28, 1986, by and between Belz Investment
Company, Inc., Martin S. Belz and Pace Productions, Inc. (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.49 First Amendment to Partnership Agreement, dated as of June 15, 1986, by and among Belz
Investment Company, Martin S. Belz, Belz-Starwood, Inc. and Pace Productions, Inc.
(incorporated by reference to Registration Statement on Form S-1 (File No. 333-43287) filed
with the SEC)
10.50 Partnership Agreement, dated as of May 15, 1996, by and between Pavilion Partners and
CDC/SMT, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ --------------------------------------------------------------------------------------------
<S> <C>
10.51 Lease Agreement, Easement Agreement and Declaration of Restrictive Covenants, dated as
of January 4, 1995, by and between South Florida Fair and Pam Beach County Expositions,
Inc. and Pavilion Partners (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.52 First Amendment to Lease Agreement, dated as of June 5, 1995, by and between South
Florida Fair and Pam Beach County Expositions, Inc. and Pavilion Partners (incorporated by
reference to Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.53 Partnership Agreement, dated as of April 4, 1997, by and between Pavilion Partners and
Irvine Meadows Amphitheater (incorporated by reference to Registration Statement on Form
S-1 (File No. 333-43287) filed with the SEC)
10.54 Amended and Restated Agreement, dated as of October 1, 1991, by and between The Irvine
Company and Irvine Meadows (incorporated by reference to Registration Statement on Form
S-1 (File No. 333-43287) filed with the SEC)
10.55 Concession Lease, dated as of October 19, 1992, by and between the County of San
Bernardino and Amphitheater Entertainment Corporation (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.56 Partnership Formation Agreement, dated as of January 22, 1988, by and among MCA
Concerts II, Inc. and Pace Entertainment Group, Inc. (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.57 Lease and Use Agreement, dated as of December 9, 1987, by and between City of Dallas and
Pace Entertainment Group, Inc. (incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.58 Agreement, dated as of October 10, 1988, by and between the City of Atlanta and MCA
Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.59 Amended Indenture of Lease, February 2, 1984, by and between the City of Atlanta and
Filmworks U.S.A., Inc. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.60 Amendment to Lease Agreement, dated as of October 10, 1988, between the City of Atlanta,
Georgia and Filmworks U.S.A., Inc. (incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.61 Agreement Regarding Sublease, dated as of January 20, 1988, by and between Filmworks
U.S.A., Inc. and MCA Concerts, Inc. (incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.62 First Amendment to Sublease, dated as of January 21, 1988, between Filmworks U.S.A., Inc.
and MCA Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.63 Second Amendment to Sublease, dated as of April 19, 1988, between Filmworks U.S.A., Inc.
and MCA Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1
(File No. 333-43287) filed with the SEC)
10.64 Third Amendment to Sublease, dated as of September 15, 1988, between Filmworks U.S.A.,
Inc. and MCA Concerts, Inc. (incorporated by reference to Registration Statement on Form
S-1 (File No. 333-43287) filed with the SEC)
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ -------------------------------------------------------------------------------------------
<S> <C>
10.65 Memorandum of Agreement, dated as of October 10, 1988, by and between the City of
Atlanta and MCA Concerts, Inc. (incorporated by reference to Registration Statement on
Form S-1 (File No. 333-43287) filed with the SEC)
10.66 Assignment of Sublease, dated as of June 15, 1989, by Filmworks U.S.A., Inc. and MCA
Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.67 Assignment of Sublease, dated as of June 23, 1989, by Filmworks U.S.A., Inc. and MCA
Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.68 Assignment of Agreement, dated as of June 15, 1989, by the City of Atlanta and MCA
Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.69 Assignment of Agreement, dated as of June 23, 1989, by the City of Atlanta and MCA
Concerts, Inc. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.70 Lease, dated as of June, 1997, by and between 500 Texas Avenue Limited Partnership and
Bayou Place Performance Hall General Partnership (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.71 Master Licensed User Agreement, dated as of February 1, 1996, by and between Ticketmaster
Ticketing Co., Inc. and Pace Entertainment Corporation (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.72 Joint Venture Agreement, dated as of July, 1995 by and between American Broadway, Inc.
and Gentry & Associates, Inc. (incorporated by reference to Registration Statement on Form
S-1 (File No. 333-43287) filed with the SEC)
10.73 Amended and Restated Employment Agreement, dated as of December 12, 1997, by and
between SFX Entertainment, Inc. and Brian E. Becker (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.74 Second Amended and Restated Partnership Agreement, dated as of April 1, 1994 by and
between The Westside Amphitheatre Corporation, San Bernardino Amphitheater Corporation
and YM Corp. (incorporated by reference to Registration Statement on Form S-1 (File No.
333-43287) filed with the SEC)
10.75 Employment Agreement, dated as of January 2, 1997, between Delsener/Slater Enterprises,
Inc., SFX Broadcasting, Inc. and Ron Delsener (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.76 Employment Agreement, dated as of January 2, 1997, between Delsener/Slater Enterprises,
Inc., SFX Broadcasting, Inc. and Mitch Slater (incorporated by reference to Registration
Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.77 1998 Stock Option and Restricted Stock Plan of the Company (incorporated by reference to
Registration Statement on Form S-1 (File No. 333-43287) filed with the SEC)
10.78 Reserved
10.79 Credit and Guarantee Agreement, dated as of February 26, 1998, by and among SFX
Entertainment, the Subsidiary Guarantors party thereto, the Lenders party thereto, Goldman
Sachs Partners, L.P., as co-documentation agent, Lehman Commercial Paper, Inc., as
co-documentation agent and the Bank of New York, as administrative agent (incorporated by
reference to Report on Form 8-K (File No. 333-43287) filed with the SEC on March 11, 1998)
</TABLE>
II-10
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ---------- ---------------------------------------------------------------------------------------------
<S> <C>
10.80 Purchase Agreement, dated February 5, 1998, relating to the 9 1/8% Senior Subordinated Notes
due 2008 of SFX Entertainment, Inc., by and among SFX Entertainment, Inc., Lehman
Brothers Inc., Sachs & Co., BNY Capital Markets, Inc. and ING Barings (incorporated by
reference to Report on Form 8-K (File No. 333-43287) filed with the SEC on March 11, 1998)
10.81 Amendment No. 2 to Agreement and Plan of Merger among SBI Holdings Corporation, SBI
Radio Acquisition Corporation and SFX Broadcasting, Inc., dated March 9, 1998
(incorporated by reference to Annual Report on Form 10-K (File No. 333-43287) filed with
the SEC on March 18, 1998)
10.82 Stock Purchase Agreement, dated as of April 29, 1998, among SFX Sports Group, Inc., SFX
Entertainment, Inc. and David Falk, Curtis Polk and G. Michael Higgins (incorporated by
reference to Amendment No. 1 to Form S-1 (File No. 333-50079) filed with the SEC)
10.83 Asset Purchase Agreement, dated April 29, 1998, by and among Blackstone Entertainment
LLC, its members, DLC Acquisition Corp., and SFX Entertainment, Inc. (incorporated by
reference to Amendment No. 1 to Form S-1 (File No. 333-50079) filed with the SEC)
10.84 Purchase Agreement, dated April 29, 1998, by and among Oakdale Concerts, LLC,
Oakdale Development Limited Partnership and Oakdale Theater Concerts, Inc. (incorporated
by reference to Amendment No. 1 to Form S-1 (File No. 333-50079) filed with the SEC)
10.85 Stock Purchase and Redemption Agreement, dated May 1, 1998, among Event
Merchandising, Inc., its stockholders and EMI Acquisition Sub, Inc. (incorporated by
reference to Amendment No. 1 to Form S-1 (File No. 333-50079) filed with the SEC)
10.86* Purchase Agreement, dated as of May 13, 1998, among SFX Entertainment, Inc., TBA
Entertainment Corporation and AWC Acquisition Corp. (incorporated by reference to
Amendment No. 2 to Form S-1 (File No. 333-50079) filed with the SEC om May 19, 1998)
10.87* Purchase Agreement, dated as of May 13, 1998, among SFX Entertainment Inc., Irving Azoff,
Peach Street Partners, Ltd., Robert E. Geddes, Individually and as trustee of the Robert E.
Geddes Family Trust, Thomas Miserendino and Kristyne Miserendino, as co-trustee of the
Miserendino Family Trust, and Brian F. Murphy (incorporated by reference to Amendment
No. 2 to Form S-1 (File No. 333-50079) filed with the SEC on May 19, 1998)
10.88* Employment agreement between the Company and David Falk, dated as of April 29, 1998
(incorporated by reference to Amendment No. 2 to Form S-1 (File No. 333-50079) filed
with the SEC on May 19, 1998)
10.89* Employment Agreement between SFX Entertainment, Inc. and Robert F.X. Sillerman, dated
as of May 8, 1998 (incorporated by reference to Amendment No. 2 to Form S-1
(File No. 333-50079) filed with the SEC on May 19, 1998)
10.90* Employment Agreement between SFX Entertainment, Inc. and Michael G. Ferrel, dated as of
May 8, 1998 (incorporated by reference to Amendment No. 2 to Form S-1 (File No. 333-50079)
filed with the SEC on May 19, 1998)
10.91* Employment Agreement between SFX Entertainment, Inc. and Thomas P. Benson, dated as
of May 8, 1998 (incorporated by reference to Amendment No. 2 to Form S-1 (File No. 333-50079)
filed with the SEC on May 19, 1998)
12.1* Ratio of Earnings to Fixed Charges.
21.1 Subsidiaries of the Registrant (incorporated by reference to Annual Report on Form 10-K
(File No. 333-43287) filed with the SEC on March 18, 1998)
24.1* Power of Attorney for D. Geoffrey Armstrong
24.2* Power of Attorney for Allen Becker
24.3* Power of Attorney for Brian Becker
24.4* Power of Attorney for Gary Becker
24.5* Power of Attorney for Thomas P. Benson
24.6* Power of Attorney for Bill Brusca
24.7* Power of Attorney for Nicholas P. Clainos
24.8* Power of Attorney for Peter Conlon
24.9* Power of Attorney for Alex Cooley
24.10* Power of Attorney for Ron Delsener
24.11* Power of Attorney for Edward Dugan
24.12* Power of Attorney for Michael G. Ferrel
24.13* Power of Attorney for Kraig G. Fox
24.14* Power of Attorney for Paul Kramer
24.15* Power of Attorney for Richard A. Liese
24.16* Power of Attorney for P. David Lucas
24.17* Power of Attorney for James F. O'Grady, Jr.
24.18* Power of Attorney for Gregg D. Perloff
24.19* Power of Attorney for Franklin D. Rockwell, Jr.
24.20* Power of Attorney for Mitch Slater
24.21* Power of Attorney for Robert F.X. Sillerman
24.22* Power of Attorney for Peter Strauss
</TABLE>
II-11
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------ -----------------------------------------------------------------------------------------
<S> <C>
25.1++ Statement of Eligibility and Qualification of Trustee on Form T-1 of The Chase Manhattan
Bank
99.1++ Form of Letter of Transmittal for the 9 1/8% Senior Subordinated Notes due 2008
99.2++ Form of Notice of Guaranteed Delivery
99.3++ Form of Letter to Clients
99.4++ Form of Letter to Broker-Dealers
</TABLE>
- ----------
* Previously filed.
+ Filed herewith.
++ To be filed by amendment.
(b) Financial Schedules.
None.
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such posteffective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the registration statement when it
became effective.
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Amendment to the registration statement on Form
S-4 to be signed on its behalf by the undersigned, thereunto duly authorized in
the City of New York, State of New York, on May 26, 1998.
SFX Entertainment, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel, Executive Vice
President, General Counsel and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons on behalf of the registrant and in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Executive Chairman, Member of the May 26, 1998
- ----------------------------- Office of the Chairman and Director
Robert F.X. Sillerman (principal executive officer)
* President, Chief Executive Officer, May 26, 1998
- ----------------------------- Member of the Office of the
Michael G. Ferrel Chairman and Director
* Executive Vice President, Member of May 26, 1998
- ----------------------------- the Office of the Chairman and Director
Brian Becker
* Executive Vice President and Director May 26, 1998
- -----------------------------
D. Geoffrey Armstrong
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- ----------------------------- Counsel, Secretary and Director
Howard J. Tytel
* Chief Financial Officer, Vice President May 26, 1998
- ----------------------------- and Director (principal financial and
Thomas P. Benson accounting officer)
* Vice President, Associate General May 26, 1998
- ----------------------------- Counsel and Director
Richard A. Liese
* Director May 26, 1998
- -----------------------------
James F. O'Grady, Jr.
* Director May 26, 1998
- -----------------------------
Paul Kramer
* Director May 26, 1998
- -----------------------------
Edward F. Dugan
</TABLE>
*By: /s/ Howard J. Tytel
------------------------
Attorney-in-fact
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
AKG, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-14
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
American Broadway, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Attorney-in-Fact
for Kraig G. Fox,
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Gary Becker
* Vice President (principal executive May 26, 1998
- -----------------------------
officer, principal financial officer and
Kraig G. Fox
principal accounting officer)
* Director May 26, 1998
- -----------------------------
Peter Straus
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Ardee Festivals, N.J., Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Ardee Productions, Ltd.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Atlanta Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
(principal financial and principal
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Co-President and Director May 26, 1998
- -----------------------------
Peter Conlon
* Co-President May 26, 1998
- -----------------------------
Alex Cooley
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Beach Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
BGP Acquisition, LLC
By: SFX Entertainment, Inc.,
its managing member
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman, Member of the May 26, 1998
- -----------------------------
Office of the Chairman and Director
Robert F.X. Sillerman
(principal executive officer)
* President, Chief Executive Officer, May 26, 1998
- -----------------------------
Member of the Office of the
Michael G. Ferrel
Chairman and Director
* Executive Vice President and Director May 26, 1998
- -----------------------------
D. Geoffrey Armstrong
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
an Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Vice President, Associate General May 26, 1998
- -----------------------------
Counsel and Director
Richard A. Liese
* Director May 26, 1998
- -----------------------------
James F. O'Grady, Jr.
* Director May 26, 1998
- -----------------------------
Paul Kramer
* Director May 26, 1998
- -----------------------------
Edward F. Dugan
* Director May 26, 1998
- -----------------------------
Brian Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Bill Graham Enterprises, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Bill Graham Management, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Bill Graham Presents, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Broadway Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Cooley and Conlon Management Co.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer (principal May 26, 1998
- -----------------------------
financial and accounting officer)
Thomas P. Benson
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Co-President and Director May 26, 1998
- -----------------------------
Peter Conlon
* Co-President May 26, 1998
- -----------------------------
Alex Cooley
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-25
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President and Co-Chief Executive May 26, 1998
- -----------------------------
Officer
Ron Delsener
* Co-President and Co-Chief Executive May 26, 1998
- -----------------------------
Officer
Mitch Slater
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Connecticut Amphitheater Development
Corp.
By: /s/ Howard J. Tytel
---------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Connecticut Concerts, Incorporated
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-28
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Connecticut Performing Arts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-29
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Connecticut Performing Arts
Partners
By: NOC, Inc., a general partner
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-30
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Conn Ticketing Company
By: Northeast Ticketing Company, a general
partner
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-31
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Contemporary Group Acquisition
Corp.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- -------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-32
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Contemporary Group, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- -------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-33
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Contemporary Marketing, Inc
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- -------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Contemporary Productions,
Incorporated
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- --------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Chief Executive Officer, and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-35
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Contemporary Sports, Incorporated
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- -------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-36
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Deer Creek Amphitheater Concerts,
Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer, President May 26, 1998
- -----------------------------
and Director
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-37
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Deer Creek Amphitheater Concerts
L.P.
By: Deer Creek Amphitheater
Concerts, Inc., its general
partner
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer, President May 26, 1998
- -----------------------------
and Director
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-38
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Delsener/Slater Enterprises, Ltd.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* President, Chief Executive Officer, May 26, 1998
- -----------------------------
Member of the Office of the
Michael G. Ferrel
Chairman and Director
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Mitch Slater
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-39
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Dumb Deal, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-40
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Entertainment Performing Arts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Mitch Slater
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-41
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Exit 116 Revisited, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-42
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Festival Productions, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-43
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Fillmore Corporation
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-44
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Fillmore Fingers, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-45
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
FPI Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-46
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
GSAC Partners
By: Pavilion Partners, its general
partner
By: SM/PACE, Inc., its general
partner
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-47
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
High Cotton, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Co-President and Director May 26, 1998
- -----------------------------
Peter Conlon
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President May 26, 1998
- -----------------------------
Alex Cooley
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-48
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
In House Tickets, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-49
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Irving Plaza Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Attorney-in-Fact for
Thomas P. Benson
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ------------------------------------- ---------------
<S> <C> <C>
* President and Director May 26, 1998
- -----------------------------
(principal executive officer)
Bill Brusca
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal executive officer
Thomas P. Benson
and principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-50
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Murat Center Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- --------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
(principal executive officer)
* Chief Executive Officer and President May 26, 1998
- -----------------------------
P. David Lucas
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-51
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Murat Center Concerts, L.P.
By: Murat Center Concerts, Inc., its
general partner
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- --------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial and accounting
Thomas P. Benson
officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
(principal executive officer)
* Chief Executive Officer and President May 26, 1998
- -----------------------------
P. David Lucas
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-52
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
NOC, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial officer and
Thomas P. Benson
principal accounting officer)
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Mitch Slater
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-53
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Northeast Ticketing Company
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* President, Chief Executive Officer and May 26, 1998
- -----------------------------
Director
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
(principal financial officer and
Thomas P. Benson
principal accounting officer)
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer and Director
Mitch Slater
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-54
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Old PCI, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-55
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE AEP Acquisition, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-56
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Amphitheaters, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-57
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Amphitheater Management, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-58
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Bayou Place, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-59
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Communications, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-60
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Concerts GP, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-61
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Concerts, Ltd.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-62
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Entertainment Corporation
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-63
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Entertainment GP Corp.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-64
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Entertainment Group, Ltd.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-65
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Milton Keynes, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-66
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Motor Sports, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-67
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Music Group, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-68
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Productions, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-69
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Theatrical Group, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-70
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Touring, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-71
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE Variety Entertainment, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Attorney-in-Fact for
Thomas P. Benson
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------- ---------------
<S> <C> <C>
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer) (principal
executive officer)
* Director May 26, 1998
- -----------------------------
Kraig Fox
* Director May 26, 1998
- -----------------------------
Gary Becker
* Director May 26, 1998
- -----------------------------
Peter Straus
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-72
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PACE UK Holding Corporation
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-73
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Pavilion Partners
By: SM/PACE, Inc., its general
partner
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-74
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PEC, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-75
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Polaris Amphitheater Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer, President and May 26, 1998
- -----------------------------
Director
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-76
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
PTG-Florida, Inc.
By: PACE Theatrical Group, Inc. its
general partner
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-77
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
QN Corp.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-78
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
SFX Broadcasting of the Midwest,
Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Attorney-in-Fact for
Thomas P. Benson, Vice
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- -------------------------------------- ---------------
<S> <C> <C>
* President and Director May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
/s/ Howard J. Tytel Director May 26, 1998
- -----------------------------
Howard J. Tytel
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal executive officer)
Thomas P. Benson
(principal financial officer and
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-79
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
SFX Concerts, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-80
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
SFX Network Group, LLC
By: SFX Entertainment, Inc., its Managing
Member
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman, Member of the May 26, 1998
- -----------------------------
Office of the Chairman and Director
Robert F.X. Sillerman
(principal executive officer)
* President, Chief Executive Officer, May 26, 1998
- -----------------------------
Member of the Office of the
Michael G. Ferrel
Chairman and Director
* Executive Vice President and Director May 26, 1998
- -----------------------------
D. Geoffrey Armstrong
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Vice President, Associate General May 26, 1998
- -----------------------------
Counsel and Director
Richard A. Liese
* Director May 26, 1998
- -----------------------------
James F. O'Grady, Jr.
* Director May 26, 1998
- -----------------------------
Paul Kramer
* Director May 26, 1998
- -----------------------------
Edward F. Dugan
* Director May 26, 1998
- -----------------------------
Brian Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-81
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Shoreline Amphitheatre, Ltd.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-82
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Shoreline Amphitheatre Partners
By: Shoreline Ampitheatre, Ltd., its
general partner
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-83
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
SJS Entertainment Corporation
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Assistant May 26, 1998
- -----------------------------
Secretary and Director (principal
Howard J. Tytel
executive officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-84
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
SM/PACE, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-85
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Southeast Ticketing Company
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman and Director May 26, 1998
- -----------------------------
(principal executive officer)
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Ron Delsener
* Co-President, Co-Chief Executive May 26, 1998
- -----------------------------
Officer, Director
Mitch Slater
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial officer and
Thomas P. Benson
principal accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-86
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Southern Promotions, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Co-President and Director May 26, 1998
- -----------------------------
Peter Conlon
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Chief Financial Officer (principal May 26, 1998
- -----------------------------
financial and accounting officer)
Thomas P. Benson
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director
Howard J. Tytel
* Co-President May 26, 1998
- -----------------------------
Alex Cooley
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-87
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Sunshine Concerts, LLC
By: SFX Broadcasting of the Midwest,
Inc., its managing member
By: /s/ Howard J. Tytel
---------------------------------
Howard J. Tytel,
Attorney-in-Fact for
Thomas P. Benson, Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* President and Director May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
/s/ Howard J. Tytel Director May 26, 1998
- -----------------------------
Howard J. Tytel
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
(principal executive officer) (principal
Thomas P. Benson
financial officer and principal
accounting officer)
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-88
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Sunshine Designs, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer and President May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-89
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Sunshine Designs, LP
By: Sunshine Design, Inc., its
general partner
By: /s/ Howard J. Tytel
---------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer and President May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-90
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Suntex Acquisition, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-91
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Suntex Acquisition, LP
By: Suntex Acquisition, Inc., its
general partner
By: /s/ Howard J. Tytel
----------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer May 26, 1998
- -----------------------------
P. David Lucas
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Vice President and Chief Financial May 26, 1998
- -----------------------------
Officer (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-92
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
The Album Network, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Chief Executive Officer and Director May 26, 1998
- -----------------------------
(principal executive officer)
Michael G. Ferrel
* Vice President, Chief Financial Officer May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Assistant May 26, 1998
- -----------------------------
Secretary and Director
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-93
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Touring Productions, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-94
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Tuneful Company, Inc.
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Michael G. Ferrel
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
* Director May 26, 1998
- -----------------------------
Brian Becker
* Director May 26, 1998
- -----------------------------
Allen Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-95
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Westbury Music Fair, LLC
By: SFX Entertainment, Inc., its managing
member
By: /s/ Howard J. Tytel
-------------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Executive Chairman, Member of the May 26, 1998
- -----------------------------
Office of the Chairman and Director
Robert F.X. Sillerman
(principal executive officer)
* President, Chief Executive Officer, May 26, 1998
- -----------------------------
Member of the Office of the
Michael G. Ferrel
Chairman and Director
* Executive Vice President and Director May 26, 1998
- -----------------------------
D. Geoffrey Armstrong
* Chief Financial Officer, Vice President May 26, 1998
- -----------------------------
and Director (principal financial and
Thomas P. Benson
accounting officer)
/s/ Howard J. Tytel Executive Vice President, General May 26, 1998
- -----------------------------
Counsel, Secretary and Director
Howard J. Tytel
* Vice President, Associate General May 26, 1998
- -----------------------------
Counsel and Director
Richard A. Liese
* Director May 26, 1998
- -----------------------------
James F. O'Grady, Jr.
* Director May 26, 1998
- -----------------------------
Paul Kramer
* Director May 26, 1998
- -----------------------------
Edward F. Dugan
* Director May 26, 1998
- -----------------------------
Brian Becker
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-96
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on May 26, 1998.
Wolfgang Records
By: /s/ Howard J. Tytel
------------------------------
Howard J. Tytel,
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant, its general partner or managing member, as the case may be, and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------- ----------------------------------------- ---------------
<S> <C> <C>
* Director May 26, 1998
- -----------------------------
Robert F.X. Sillerman
* Director May 26, 1998
- -----------------------------
Nicholas P. Clainos
* Director May 26, 1998
- -----------------------------
Gregg D. Perloff
* Director May 26, 1998
- -----------------------------
Franklin D. Rockwell, Jr.
* Chief Financial Officer and Vice May 26, 1998
- -----------------------------
President (principal financial
Thomas P. Benson
and accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and May 26, 1998
- -----------------------------
Director (principal executive officer)
Howard J. Tytel
*By: /s/ Howard J. Tytel
------------------------
Howard J. Tytel
Attorney-in-fact
</TABLE>
II-97
<PAGE>
ARTICLES OF INCORPORATION
OF
AMERICAN BROADWAY, INC.
I, the undersigned natural person, over the age of eighteen (18) years
and a citizen of the State of Texas, acting as incorporator of a corporation
under the Texas Business Corporation Act, hereby adopt the following Articles
of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is "AMERICAN BROADWAY, INC."
ARTICLE TWO.
The corporation shall have a perpetual existence.
ARTICLE THREE.
The purposes for which the corporation is organized are the
transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have
authority to issue is 1,000,000 shares of the par value of $0.01 each.
ARTICLE FIVE.
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE SIX.
The corporation may acquire its own shares and may reissue such shares
as provided by law.
ARTICLE SEVEN.
The address of its initial registered office is 515 Post Oak
Boulevard, Suite 300, Houston, Texas 77027, and the name of its initial
registered agent at such address is Michael L. Gayler.
<PAGE>
ARTICLE EIGHT.
The number of Directors shall be fixed by the bylaws of the
corporation, and until changed by the bylaws, the number of directors
constituting the Board of Directors is one (1) and the name and address of the
person who is to serve as Director until the first annual meeting of the
shareholders or until his successor is elected and qualified is:
Gary Becker
515 Post Oak Boulevard
Suite 300
Houston, Texas 77027
ARTICLE NINE.
The corporation may enter into contracts or transact business with one
or more of its directors or officers, or with any corporation, firm or
association in which any of its directors or officers are stockholders,
directors, officers, members, employees or otherwise interested; and no such
contract or other transaction shall be void or voidable or otherwise affected
by reason of such directorship or office in the corporation or such interest in
such other firm, corporation or association, notwithstanding that a director or
directors having such interest are present and counted in determining the
existence of a quorum at a meeting of the Board of Directors of the
corporation, and notwithstanding that the vote of such director or directors
shall have been necessary to authorize, approve, ratify, or otherwise obligate
the corporation upon such contract or transaction, provided that the fact of
such interest shall be disclosed or otherwise known to the Board of Directors,
or a majority thereof at the meeting of the Board of Directors which acts upon
or in reference to such contract or transaction; nor shall any director or
officer be liable to account to the corporation for any profits realized by or
from or through any such transaction or contract of the corporation by reason
of such directorship, office or interest, except as otherwise provided in the
bylaws of the corporation.
ARTICLE TEN.
The name and address of the incorporator is:
Michael F. Rogers
333 Clay Ave., Suite 800
Houston, Texas 77002
ARTICLE ELEVEN.
The corporation reserves the right to amend, after, change or repeal
any provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
ARTICLE TWELVE.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify and advance expenses, prior to the final disposition of the
proceeding, to a director, and may, upon the determination of the Board of
Directors, indemnify and advance expenses, prior to the final disposition of
the proceeding, to an officer, employee, agent or person who is or
2
<PAGE>
was serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, who was, is
or is threatened to be made a defendant or respondent in any proceeding.
ARTICLE THIRTEEN.
The right of cumulative voting of shares is hereby expressly
prohibited.
ARTICLE FOURTEEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed this instrument on this 11th day of
July, 1995.
Incorporator:
/s/ Michael F. Rogers
---------------------
Michael F. Rogers
3
<PAGE>
BYLAWS
OF
AMERICAN BROADWAY, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located
in Harris County, Texas.
Section 2. The corporation may also have offices at such other places
both within or without the State of Texas as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of
directors shall be held at such time and place, within or without the State of
Texas, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with
or without cause at any meeting of shareholders by majority vote of the shares
then entitled to vote, provided that notice of the proposed action is given in
the notice or waiver of notice of such meeting. Election of Directors shall be
by plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may
be held within or without the State of Texas. The annual meeting of the Board
of Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
<PAGE>
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors
and shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be
issued for lawful consideration (not less than par value) and to such persons
as the Board of Directors may determine from time to time. In the absence of
fraud, the judgment of the Board of Directors as to the value received for
shares issued shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article
2.02-1 of the Texas Business Corporation Act, any person who is or was a
director, officer, agent or employee of the corporation.
APPROVED by the initial directors this 14th day of July, 1995.
ATTEST:
/s/ Michael L. Gayler
- ----------------------------------
Michael L. Gayler, Secretary
2
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ARDEE FESTIVALS N.J., INC.
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of the New Jersey Business
Corporation Act, the undersigned, being a natural person of at least 18 years
of age and acting as the incorporator of the corporation hereby being organized
thereunder, certifies that:
FIRST: The name of the corporation (hereinafter called
the "corporation") is ARDEE FESTIVALS N.J., INC.
SECOND: The corporation may engage in any activity
within the purposes for which corporations may be organized under
the New Jersey Business Corporation Act.
THIRD: The aggregate number of shares which the corporation
shall have authority to issue is two thousand five hundred, all of which are
without par value, and all of which are of the same class.
FOURTH: The address of the initial registered office of the
corporation within the State of New Jersey, Inc., 150 West State Street,
Trenton, New Jersey 08608; and the name of the initial registered agent at such
address is The Prentice-Hall Corporation System, New Jersey, Inc.
FIFTH: The number of directors constituting the first Board
of Directors of the corporation is one; and the name and the address of the
person who is to serve as the first director of the corporation are as follows:
NAME ADDRESS
---- -------
Ron Delsener 27 East 67th Street
New York, New York 10021
<PAGE>
SIXTH: The name and the address of the incorporator
are as follows:
NAME ADDRESS
---- -------
Athena Togias 15 Columbus Circle
New York, New York 10023-7773
SEVENTH: For the management of the business and for the
conduct of the affairs of the corporation, and in further definition,
limitation and regulation of the powers of the corporation and of its directors
and of its shareholders or any class thereof, as the case may be, it is further
provided:
1. The management of the business and the conduct of the
affairs of the corporation, including the election of the Chairman of
the Board of Directors, if any, the President, the Treasurer, the
Secretary, and other principal officers of the corporation, shall be
vested in its Board of Directors.
2. The Board of Directors shall have the power to remove
directors for cause and to suspend directors pending a final
determination that cause exists for removal.
3. The corporation shall, to the fullest extent permitted by
Section 14A:3-5 of the New Jersey Business Corporation Act, as the
same may be amended and supplemented, indemnify any and all corporate
agents whom it shall have power to indemnify under said section from
and against any and all of the expenses, liability or other matters
referred to in or covered by said Section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights
to which those indemnified may be entitled under any By-Law,
agreement, vote of shareholders, or otherwise, and shall continue as
to a person who has ceased to be a corporate agent and shall inure to
the benefit of the heirs, executors, administrators, and personal
representatives of such a corporate agent. The term "corporate agent"
as used herein shall have the meaning attributed to it by Sections
14A:3-5 and 14A:5-21 of the New Jersey Business Corporation Act and by
any other applicable provision of law.
4. The personal liability of the directors of the corporation
is hereby eliminated to the fullest
-2-
<PAGE>
extent permitted by subsection 14A:2-7 of the New Jersey Business
Corporation Act, as the same may be amended and supplemented.
EIGHTH: The duration of the corporation is to be
perpetual.
Signed on May 3, 1990.
---------------------------
Athena Togias, Incorporator
-3-
<PAGE>
ARDEE FESTIVALS NJ., INC.
BY LAWS
ARTICLE ONE
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors, shall
be issued to shareholders specifying the name of the owner, number of shares,
and date of issue. Each certificate shall be signed by the President and
Secretary with the corporate seal affixed thereon. Each certificate shall be
numbered in the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share of common
stock, unless otherwise stated in Article of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer ledger of
the corporation. Such transfers shall be done in person or by power of
attorney. Transfers shall be completed on the surrender of the old certificate,
duly assigned.
ARTICLE TWO
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be from time to time,
at the time fixed by the directors at a place from time to time fixed by the
directors. If the stated day is a weekend day or a legal holiday, the meeting
shall be held on the next succeeding day not a weekend day or a holiday.
SECTION TWO: The place of the annual meeting may be changed by the Board of
Directors within or without the State of incorporation for any given year upon
____ days notice to the shareholders. Special meetings may be held within or
without of the State of incorporation and at such time as the Board of
Directors may fix.
SECTION THREE: Special meetings of the shareholders may be called at any time
by the President or any holder(s) of a majority of the outstanding shares of
stock entitled to vote.
SECTION FOUR: Notice of any special meeting of the shareholders shall be given
to all shareholders to their last known address by registered mail. Notice of
any special meeting of the shareholders shall state the purpose of such
meeting. Notice of a special meeting may be waived in writing either before or
after such meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of
Incorporation, all meetings of the shareholders, action may be taken by a
majority vote of the number of shares entitled to vote as represented by the
shareholders present at such meeting. Directors shall be elected by a plurality
vote. A quorum shall constitute one share over fifty percent of the outstanding
shares entitled to vote as represented by the shareholders present at such
meeting. No business may be transacted without the presence of a quorum. At any
time during any shareholders meeting, if it is determined that a quorum is no
longer present, the meeting shall be then adjourned.
SECTION SIX: Action may be taken by the shareholders without a formal meeting
by consent, if such consent is executed in writing by all of the shareholders
entitled to vote and if allowed under the laws of the State of incorporation.
<PAGE>
ARTICLE THREE
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire
management of the affairs and business of the corporation. The Board of
Directors shall adopt rules and regulations to manage the affairs and business
of the corporation by resolution at special or the annual meeting. A quorum
shall consist of a majority of the directors. Resolutions adopted and all
business transacted by the Board of Directors shall be done by a majority vote
of the directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of 1 member to be elected by
the shareholders at an annual meeting. The term of office shall be one year.
vacancies may be filled by the Board of Directors prior to the expiration of
the term. Such appointment shall continue until the next annual meeting of
shareholders.
SECTION THREE: The Board of Directors shall meet annually at the same place of
the shareholders meetings immediately following the annual meeting of the
shareholders. Special meetings of the Board of Directors may be called by the
President or any two (2) directors on ten (10) days notice, or such other and
further notice as required by the laws of the State of incorporation.
SECTION FOUR: Notice of special or regular meetings of the Board of Directors
other than the annual meeting of the Board of Directors, shall be made by mail
to the last known address of each director. Such notice shall be mailed ten
(10) days prior to such meeting and shall include time and place and reasons
for the meeting. All other requirements of the laws of the State of
incorporation for notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a meeting of
the Board of Directors shall be deemed to have assented to action taken at such
meeting as to any corporate action taken, unless a director who did not vote in
favor on such action goes on record in the minutes as dissenting. In such a
case, the dissenting director will not be deemed to having assented to the
action taken.
SECTION SIX: Directors may be removed for cause by a majority vote at a meeting
of the shareholders or Directors. Directors may be removed without cause by a
majority vote at a meeting of the shareholders.
ARTICLE FOUR
OFFICERS
SECTION ONE: The officers of the corporation shall consist of a President,
Secretary and Treasurer. All officers shall be elected by the Board of
Directors and shall serve a term for compensation as fixed by the Board of
Directors. The
Board of Directors may establish other offices as it may be deem fit.
SECTION TWO: The chief executive officer shall be the President. The president
shall have management powers of the corporation. His duties shall include but
are not limited to administration of the corporation presiding over
shareholders meeting including general supervision of the policies of the
corporation as well as general management. The President shall execute
contracts, mortgages, loans and bonds under the seal of the corporation. The
President shall have other powers as determined by the Board of Directors by
resolution.
SECTION THREE: The Secretary shall keep the minutes of meetings of the Board of
Directors and shareholder meetings. The Secretary shall have charge of the
minute books, seal and stock books of the corporation. The Secretary shall have
other powers as delegated by the President.
SECTION FOUR: The Treasurer shall have the power to manage the financial
affairs of the corporation. The Treasurer shall keep books and records of the
financial affairs and make such available to the President and Board of
Directors
2
<PAGE>
upon request. The Treasurer may make recommendations to the officers and
directors in regard to the financial affairs of the corporation.
SECTION FIVE: The Vice-President, if one is appointed by the Board of
Directors, shall have such powers as delegated to him by the President. Upon
the inability to perform by the President, the Vice-President shall serve as
President until such time as the President shall be able to perform or further
action by the Board of Directors. The President shall be deemed unable to
perform his duties upon written notification by the President of such inability
or resignation to the Board of Directors that the President is unable to
perform.
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until such
time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice-President shall act as
President, the Treasurer shall act as Secretary, and the Secretary shall act as
Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the President. These
duties shall be those delegated to them by the President or the Board of
Directors.
SECTION EIGHT: Compensation of the officers shall be determined by the Board of
Directors.
ARTICLE FIVE
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be executed
without approval by the Board of Directors by resolution. Upon such resolution,
the President shall be authorized to execute contracts or instruments of
indebtedness as specified in the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness shall be
executed in the manner as determined by the Board of Directors by resolution.
ARTICLE SIX
CORPORATE SEAL
The seal of the corporation shall be provided by the Board of
Directors by resolution. The seal shall be used by the President or other
officers of the corporation as provided for in these By-Laws.
ARTICLE SEVEN
AMENDMENT
These By-Laws may be amended from time to time by a majority
vote of the Board of Directors or by a majority vote of the shareholders. These
By-Laws may be repealed and new By-Laws established in the same manner as
amendments. These By-Laws will continue in full force and effect until amended
or repealed and replaced by new By-Laws.
ARTICLE EIGHT
DIVIDENDS
The Board of Directors may from time to time declare
dividends to the shareholders. These distributions may be in cash or property.
No such dividends may be made out of the capital of the corporation.
3
<PAGE>
ARDEE PRODUCTIONS, LTD.
BY LAWS
ARTICLE ONE
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors, shall
be issued to shareholders specifying the name of the owner, number of shares,
and date of issue. Each certificate shall be signed by the President and
Secretary with the corporate seal affixed thereon. Each certificate shall be
numbered in the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share of common
stock, unless otherwise stated in Article of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer ledger of
the corporation. Such transfers shall be done in person or by power of
attorney. Transfers shall be completed on the surrender of the old certificate,
duly assigned.
ARTICLE TWO
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be from time to time,
at the time fixed by the directors at a place from time to time fixed by the
directors. If the stated day is a weekend day or a legal holiday, the meeting
shall be held on the next succeeding day not a weekend day or a holiday.
SECTION TWO: The place of the annual meeting may be changed by the Board of
Directors within or without the State of incorporation for any given year upon
____ days notice to the shareholders. Special meetings may be held within or
without of the State of incorporation and at such time as the Board of
Directors may fix.
SECTION THREE: Special meetings of the shareholders may be called at any time
by the President or any holder(s) of a majority of the outstanding shares of
stock entitled to vote.
SECTION FOUR: Notice of any special meeting of the shareholders shall be given
to all shareholders to their last known address by registered mail. Notice of
any special meeting of the shareholders shall state the purpose of such
meeting. Notice of a special meeting may be waived in writing either before or
after such meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of
Incorporation, all meetings of the shareholders, action may be taken by a
majority vote of the number of shares entitled to vote as represented by the
shareholders present at such meeting. Directors shall be elected by a plurality
vote. A quorum shall constitute one share over fifty percent of the outstanding
shares entitled to vote as represented by the shareholders present at such
meeting. No business may be transacted without the presence of a quorum. At any
time during any shareholders meeting, if it is determined that a quorum is no
longer present, the meeting shall be then adjourned.
SECTION SIX: Action may be taken by the shareholders without a formal meeting
by consent, if such consent is executed in writing by all of the shareholders
entitled to vote and if allowed under the laws of the State of incorporation.
<PAGE>
ARTICLE THREE
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire
management of the affairs and business of the corporation. The Board of
Directors shall adopt rules and regulations to manage the affairs and business
of the corporation by resolution at special or the annual meeting. A quorum
shall consist of a majority of the directors. Resolutions adopted and all
business transacted by the Board of Directors shall be done by a majority vote
of the directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of 1 member to be elected by
the shareholders at an annual meeting. The term of office shall be one year.
vacancies may be filled by the Board of Directors prior to the expiration of
the term. Such appointment shall continue until the next annual meeting of
shareholders.
SECTION THREE: The Board of Directors shall meet annually at the same place of
the shareholders meetings immediately following the annual meeting of the
shareholders. Special meetings of the Board of Directors may be called by the
President or any two (2) directors on ten (10) days notice, or such other and
further notice as required by the laws of the State of incorporation.
SECTION FOUR: Notice of special or regular meetings of the Board of Directors
other than the annual meeting of the Board of Directors, shall be made by mail
to the last known address of each director. Such notice shall be mailed ten
(10) days prior to such meeting and shall include time and place and reasons
for the meeting. All other requirements of the laws of the State of
incorporation for notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a meeting of
the Board of Directors shall be deemed to have assented to action taken at such
meeting as to any corporate action taken, unless a director who did not vote in
favor on such action goes on record in the minutes as dissenting. In such a
case, the dissenting director will not be deemed to having assented to the
action taken.
SECTION SIX: Directors may be removed for cause by a majority vote at a meeting
of the shareholders or Directors. Directors may be removed without cause by a
majority vote at a meeting of the shareholders.
ARTICLE FOUR
OFFICERS
SECTION ONE: The officers of the corporation shall consist of a President,
Secretary and Treasurer. All officers shall be elected by the Board of
Directors and shall serve a term for compensation as fixed by the Board of
Directors. The Board of Directors may establish other offices as it may be deem
fit.
SECTION TWO: The chief executive officer shall be the President. The president
shall have management powers of the corporation. His duties shall include but
are not limited to administration of the corporation presiding over
shareholders meeting including general supervision of the policies of the
corporation as well as general management. The President shall execute
contracts, mortgages, loans and bonds under the seal of the corporation. The
President shall have other powers as determined by the Board of Directors by
resolution.
SECTION THREE: The Secretary shall keep the minutes of meetings of the Board of
Directors and shareholder meetings. The Secretary shall have charge of the
minute books, seal and stock books of the corporation. The Secretary shall have
other powers as delegated by the President.
SECTION FOUR: The Treasurer shall have the power to manage the financial
affairs of the corporation. The Treasurer shall keep books and records of the
financial affairs and make such available to the President and Board of
Directors
2
<PAGE>
upon request. The Treasurer may make recommendations to the officers and
directors in regard to the financial affairs of the corporation.
SECTION FIVE: The Vice-President, if one is appointed by the Board of
Directors, shall have such powers as delegated to him by the President. Upon
the inability to perform by the President, the Vice-President shall serve as
President until such time as the President shall be able to perform or further
action by the Board of Directors. The President shall be deemed unable to
perform his duties upon written notification by the President of such inability
or resignation to the Board of Directors that the President is unable to
perform.
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until such
time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice-President shall act as
President, the Treasurer shall act as Secretary, and the Secretary shall act as
Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the President. These
duties shall be those delegated to them by the President or the Board of
Directors.
SECTION EIGHT: Compensation of the officers shall be determined by the Board of
Directors.
ARTICLE FIVE
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be executed
without approval by the Board of Directors by resolution. Upon such resolution,
the President shall be authorized to execute contracts or instruments of
indebtedness as specified in the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness shall be
executed in the manner as determined by the Board of Directors by resolution.
ARTICLE SIX
CORPORATE SEAL
The seal of the corporation shall be provided by the Board of
Directors by resolution. The seal shall be used by the President or other
officers of the corporation as provided for in these By-Laws.
ARTICLE SEVEN
AMENDMENT
These By-Laws may be amended from time to time by a majority vote of
the Board of Directors or by a majority vote of the shareholders. These By-Laws
may be repealed and new By-Laws established in the same manner as amendments.
These By-Laws will continue in full force and effect until amended or repealed
and replaced by new By-Laws.
ARTICLE EIGHT
DIVIDENDS
The Board of Directors may from time to time declare dividends to the
shareholders. These distributions may be in cash or property. No such dividends
may be made out of the capital of the corporation.
3
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ATLANTA CONCERTS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of
the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code
and the acts amendatory thereof and supplemental thereto, and known,
identified, and referred to as the "General Corporation Law of the State of
Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Atlanta Concerts, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State of Delaware
is 1013 Centre Road, City of Wilmington 19805, County of New Castle; and the
name of the registered agent of the corporation in the State of Delaware at
such address is Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one thousand. The par value of
each of such shares is one cent. All such shares are of one class and are
shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
is as follows:
NAME MAILING ADDRESS
- ---- ---------------
Deborah Goldman-Levi 150 East 58th Street, 19th Floor
New York, NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this corporation
under ss.291 of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under ss.279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three fourths in
value of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders,
of this corporation, as the case may be, and also on this corporation.
EIGHTH: For the management of the business and for the
conduct of the affairs of the corporation, and in further definition,
limitation, and regulation of the powers of the corporation and of its
directors and of its stockholders or any class thereof, as the case may be, it
is further provided:
<PAGE>
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of
Directors. The number of directors which shall constitute
the whole Board of Directors shall be fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and
the phrase "total number of directors" shall be deemed to
have the same meaning, to wit, the total number of directors
which the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation
have been adopted, amended, or repealed, as the case may be,
in accordance with the provisions of ss. 109 of the General
Corporation Law of the State of Delaware, and, after the
corporation has received any payment for any of its stock,
the power to adopt, amend, or repeal the Bylaws of the
corporation may be exercised by the Board of Directors of
the corporation; provided, however, that any provision for
the classification of directors of the corporation for
staggered terms pursuant to the provisions of subsections
(d) of ss. 141 of the General Corporation Law of the State
of Delaware shall be set forth in an initial Bylaw or in a
Bylaw adopted by the stockholders entitled to vote of the
corporation unless provisions for such classification shall
be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue
only one class of stock, each outstanding share shall
entitle the holder thereof to notice of, and the right to
vote at, any meeting of stockholders. Whenever the
corporation shall be authorized to issue more than one class
of stock, no outstanding share of any class of stock which
is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder
thereof to the right to vote at any meeting of stockholders
except as the provisions of paragraph (2) of subsection (b)
of ss.242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of
any such class which is otherwise denied voting power shall
entitle the holder thereof to vote upon the increase to
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of ss. 102 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented.
TENTH: The corporation shall, to the fullest extent
permitted by the provisions of ss. 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented, indemnify any
and all persons whom it shall have power to indemnify under said section from
and against any and all of the expenses, liabilities, or other matters
referred to in or covered by sald section, and the indemnification provided
for herein shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any Bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
-2-
<PAGE>
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions 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 all rights at any time conferred upon the stockholders of the
corporation by this certificate of incorporation are granted subject to the
provisions of this Article ELEVENTH.
Signed on September 24, 1997
/s/Deborah Goldman-Levi
-------------------------------------
Deborah Goldman-Levi, Incorporator
-3-
<PAGE>
BY-LAWS
OF
ATLANTA CONCERTS, INC.
--------------------------------------------------------------
ARTICLE I
OFFICES
--------
1.1 Register Office: The registered office shall be
established and maintained at and shall be the registered agent of the
Corporation in charge hereof.
1.2 Other Offices: The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require, provided, however, that the corporation's books and
records shall be maintained at such place within the continental United States
as the Board of Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
------------
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within
or outside the State of Delaware as may be fixed by the Board of Directors
from time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An
annual meeting of stockholders shall be held each year within five months
after the close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of
the stockholders or of any class or series thereof entitled to vote may be
called by the President or by the Chairman of the Board of Directors, or at
the request in writing by stockholders of record owning at least fifty (50%)
percent of the issued and outstanding voting shares of common stock of the
corporation.
2.5 Notice of Meanings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders' meeting the Secretary shall
give to each stockholder of record entitled to vote at such meeting, written
notice, served personally by mail or by telegram, 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. Such notice, if mailed shall be
deemed to be given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address for notices to such stockholder as
it appears on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by
the Certificate of Incorporation or by law, at any meeting of the
stockholders, the presence in person or by proxy of stockholders entitled to
cast a majority of the votes thereat shall constitute a quorum. The withdrawal
of any shareholder after the commencement of a meeting shall have no effect on
the existence of a quorum, after a quorum has been established at such
meeting.
By-Laws - 1
<PAGE>
(b) At any meeting of the stockholders at which a
quorum shall be present, a majority of voting stockholders, present in person
or by proxy, may adjourn the meeting from time to time without notice other
than announcement at the meeting. In the absence of a quorum, the officer
presiding thereat shall have power to adjourn the meeting from time to time
until a quorum shall be present. Notice of any adjourned meeting, other than
announcement at the meeting, shall not be required to be given except as
provided in paragraph (d) below and except where expressly required by law.
(c) At any adjourned session at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting originally called but only those stockholders
entitled to vote at the meeting as originally noticed shall be entitled to
vote at any adjournment or adjournments thereof, unless a new record date is
fixed by the Board of Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President, shall
preside at meetings of the stockholders. The Secretary shall act as secretary
of the meeting or if he is not present, then the presiding officer may appoint
a person to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise
provided by the Certificate of Incorporation or those by-laws, at every
meeting of the stockholders each stockholder shall be entitled to one vote for
each share of voting stock standing in his name on the books of the
corporation on the record date for the meeting. Except as otherwise provided
by these by-laws, all elections and questions shall be decided by the vote of
a majority in interest of the stockholders present in person or represented by
proxy and entitled to vote at the meeting.
2.9 Proxies: Any stockholder entitled to vote at any meeting
of stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized
attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other
vote by ballot at any meeting of the stockholders shall be supervised by at
least two inspectors. Such inspectors may be appointed by the presiding
officer before or at the meeting; or if one or both inspectors so appointed
shall refuse to serve or shall not be present, such appointment shall be made
by the officer presiding at the meeting.
2.11 List of Stockholders: (a) At least ten days before
every meeting of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of
at least ten days prior to the meeting, such list shall be open to examination
by any stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the
time and place of the meeting during the whole time of the meeting, and it may
be inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list
required by this Section 2.11 or the books of the corporation, or to vote in
person or by proxy at any meeting of stockholders.
By-Laws - 2
<PAGE>
2.12 Procedure at Stockholders' Meetings: Except as
otherwise provided by these by-laws or any resolutions adopted by the
stockholders or Board of Directors, the order of business and all other
matters of procedure at every meeting of stockholders shall be determined by
the presiding officer.
2.13 Action By Consent Without Meeting: Unless otherwise
provided by the Certificate of Incorporation, any action required to be taken
at any annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting, may be taken without a meeting,
without prior notice and without a vote, if a consent 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. 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 III
DIRECTORS
---------
3.1 Powers of Directors: The property, business and affairs
of the corporation shall be managed by its Board of Directors which may
exercise all the powers of the corporation except such as are by the law of
the State of Delaware or the Certificate of Incorporation or these by-laws
required to be exercised or done by the stockholders.
3.2 Number, Method of Election, Terms-of Office of
Directors: The number of directors which shall constitute the Board of
Directors shall be unless and until otherwise determined by a vote of a
majority of the entire Board of Directors. Each Director shall hold office
until the next annual meeting of stockholders and until his successor is
elected and qualified, provided, however, that a director may resign at any
time. Directors need not be stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any
director may resign his office at any time by delivering his resignation in
writing to the Chairman of the Board or to the President. It will take effect
at the time specified therein or, if no time is specified, it will be
effective at the time of its receipt by the corporation. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
(b) Any vacancy in the authorized number of
directors may be filled by majority vote of the stockholders and any director
so chosen shall hold office until the next annual election of directors by the
stockholders and until his successor is duly elected and qualified or until
his earlier resignation or removal.
(c) Any director may be removed with or without
cause at any time by the majority vote of the stockholders given at a special
meeting of the stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of
Directors may hold their meetings, both regular and special, either within or
outside the State of Delaware.
(b) Regular meetings of the Board of Directors may
be held at such time and place as shall from time to time be determined by
resolution of the Board of Directors. No notice of such regular meetings shall
be required. If the date designated for any regular meeting be a legal
holiday, then the meeting shall be held on the next day which is not a legal
holiday.
(c) The first meeting of each newly elected Board
of Directors shall be held immediately following the annual meeting of the
stockholders for the election of officers and the transaction of such other
business as may come before it. If such meeting is held at the place of the
stockholders' meeting, no notice thereof shall be required.
(d) Special meetings of the Board of Directors
shall be held whenever called by direction of the Chairman of the Board or the
President or at the written request of any one director.
By-Laws - 3
<PAGE>
(e) The Secretary shall give notice to each
director of any special meeting of the Board of Directors by mailing the same
at least three days before the meeting or by telegraphing, telexing, or
delivering the same not later than the date before the meeting.
Unless required by law, such notice need not
include a statement of the business to be transacted at, or the purpose of,
any such meeting. Any and all business may be transacted at any meeting of the
Board of Directors. No notice of any adjourned meeting need be given. No
notice to or waiver by any director shall be required with respect to any
meeting at which the director is present.
3.5 Quorum and Action: Unless provided otherwise by law or
by the Certificate of Incorporation or these by-laws, a majority of the
Directors shall constitute a quorum for the transaction of business; but if
there shall be less than a quorum at any meeting of the Board, a majority of
those present may adjourn the meeting from time to time. The vote of a
majority of the Directors present at any meeting at which a quorum is present
shall be necessary to constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The
President, or, in his absence a member of the Board of Directors selected by
the members present, shall preside at meetings of the Board. The Secretary
shall act as secretary of the meeting, but in his absence the presiding
officer may appoint a secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes or proceedings of the Board or
committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution
or resolutions passed by a majority of Directors designate one or more
committees, each of such committees to consist of one or more Directors of the
Corporation, for such purposes as the Board shall determine. 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.
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for
attendance at meetings, or both, with expenses, if any, as the Board of
Directors may from time to time determine. Nothing herein contained shall be
construed to preclude any Director from serving in any other capacity and
receiving compensation therefor.
ARTICLE IV
OFFICERS
--------
4.1 Officers, Title, Elections, Terms: (a) The elected
officers of the corporation shall be a President, a Treasurer and a Secretary,
and such other officers as the Board of Directors shall deem advisable. The
officers shall be elected by the Board of Directors at its annual meeting
following the annual meeting of the stockholders, to serve at the pleasure of
the Board or otherwise as shall be specified by the Board at the time of such
election and until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at
any time, and from time to time, additional officers or agents with such
duties as it may deem necessary or desirable. Such additional officers shall
serve at the pleasure of the Board or otherwise as shall be specified by the
Board at the time of such election or appointment. Two or more offices may be
held by the same person.
By-Laws - 4
<PAGE>
(c) Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein or, if no time has been specified, at the time of its
receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the
resignation.
(e) The salaries of all officers of the corporation
shall be fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be
removed at any time, either with or without cause, by resolution adopted at
any regular or special meeting of the Board of Directors by a majority of the
Directors then in office.
4.3 Duties: (a) President: The President shall be the
principal executive officer of the corporation and, subject to the control of
the Board of Directors, shall supervise and control all the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the stockholders and of the Board of Directors. He shall see that all orders
and resolutions of the Board of Directors are carried into effect (unless any
such order or resolution shall provide otherwise), and in general shall
perform all duties incident to the office of president and such other duties
as may be prescribed by the Board of Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge
and custody of and be responsible for all funds and secretaries of the
Corporation; (2) receive and give receipts for moneys due and payable to the
corporation from any source whatsoever; (3) deposit all such moneys in the
name of the corporation in such banks, trust companies, or other depositories
as shall be selected by resolution of the Board of Directors; and (4) in
general perform all duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the President or by the
Board of Directors. He shall, if required by the Board of Directors, give a
bond for the faithful discharge of his duties in such sum and with such surety
or sureties as the Board of Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the
minutes of the meetings of the stockholders, the Board of Directors, and all
committees, if any, of which a secretary shall not have been appointed, in one
or more books provided for that purpose; (2) see that all notices are duly
given in accordance with the provisions of these by-laws and as required by
law; (3) be custodian of the corporate records and of the seal of the
corporation and see that the seal of the corporation is affixed to all
documents, the execution of which on behalf of the corporation under its seal,
is duly authorized; (4) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (5)
have general charge of stock transfer books of the Corporation; and (6) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the President or by the
Board of Directors.
ARTICLE V
CAPITAL STOCK
-------------
5.1 Stock Certificates: (a) Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the President and by the Treasurer or the Secretary,
certifying the number of shares owned by him.
(b) If such certificate is countersigned by a
transfer agent other than the corporation or its employee, or by a registrar
other than the corporation or its employee, the signatures of the officers of
the corporation may be facsimiles, and, if permitted by law, any other
signature may be a facsimile.
By-Laws - 5
<PAGE>
(c) In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such
form not inconsistent with the Certificate of Incorporation as shall be
approved by the Board of Directors, and shall be numbered and registered in
the order in which they were issued.
(e) All certificates surrendered to the corporation
shall be canceled with the date of cancellation, and shall be retained by the
Secretary, together with the powers of attorney to transfer and the
assignments of the shares represented by such certificates, for such period of
time as shall be prescribed from time to time by resolution of the Board of
Directors.
5.2 Record Ownership: A record of the name and address of
the holder of such certificate, the number of shares represented thereby and
the date of issue thereof shall be made on the corporation's books. The
corporation shall be entitled to treat the holder of any share of stock as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except
as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall
be made on the books of the corporation only by direction of the person named
in the certificate or his attorney, lawfully constituted in writing, and only
upon the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place
of any certificate alleged to have been lost, stolen or destroyed in such
manner and on such terms and conditions as the Board of Directors from time to
time may authorize.
5.5 Transfer Agent; Registrar; Rules Respecting
Certificates: The corporation may maintain one or more transfer offices or
agencies where stock of the corporation shall be tranferable. The corporation
may also maintain one or more registry offices where such stock shall be
registered. The Board of Directors may make such rules and regulations as it
may deem expedient concerning the issue, transfer and registration of stock
certificates.
5.6 Fixing Record Date for Determination of Stockholders of
Record: The Board of Directors may fix, in advance, a date as the record date
for the purpose of determining stockholders entitled to notice of, or to vote
at, any meeting of the stockholders or any adjournment thereof, or the
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion or exchange of stock, or to express consent to
corporate action in writing without a meeting, or in order to make a
determination of the stockholders for the purpose of any other lawful action.
Such record date in any case shall be not more than sixty days nor less than
ten days before the date of a meeting of the stockholders, nor more than sixty
days prior to any other action requiring such determination of the
stockholders. A determination of stockholders of record entitled to notice or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate
of Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
By-Laws - 6
<PAGE>
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
----------------------------------
6.1 Voting: Unless the Board of Directors shall otherwise
order, the President, the Secretary or the Treasurer shall have full power and
authority, on behalf of the corporation, to attend, act and vote at any
meeting of the stockholders of any corporation in which the corporation may
hold stock, and at such meeting to exercise any or all rights and powers
incident to the ownership of such stock, and to execute on behalf of the
corporation a proxy or proxies empowering another or others to act as
aforesaid. The Board of Directors from time to time may confer like powers
upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation: (a) Any of the following officers, to wit: the President and the
Treasurer shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidence of indebtedness, or other securities now or hereafter
standing in the name of or owned by the corporation, and to make, execute and
deliver, under the seal of the corporation, any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority hereby
conferred.
(b) Whenever there shall be annexed to any
instrument of assignment and transfer executed pursuant to and in accordance
with the foregoing paragraph (a), a certificate of the Secretary of the
corporation in office at the date of such certificate setting forth the
provisions of this Section 6.2 and stating that they are in full force and
effect and setting forth the names of persons who are then officers of the
corporation, then all persons to whom such instrument and annexed certificate
shall thereafter come, shall be entitled, without further inquiry or
investigation and regardless of the date of such certificate, to assume and to
act in reliance upon the assumption that the shares of stock or other
securities named in such instrument were theretofore duly and properly
transferred, endorsed, sold, assigned, set over and delivered by the
corporation, and that with respect to such securities the authority of these
provisions of the by-laws and of such officers is still in full force and
effect.
ARTICLE VII
MISCELLANEOUS
-------------
7.1 Signatories: All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form
and shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the
time, place or purpose of any meeting of the stockholders, directors or a
committee is required to be given under the law of the State of Delaware, the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the holding thereof, or actual attendance at the meeting in person or,
in the case of any stockholder, by his attorney-in-fact, shall be deemed
equivalent to the giving of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its
directors, officers and employees to the fullest extent allowed by law,
provided, however, that it shall be within the discretion of the Board of
Directors whether to advance any funds in advance of disposition of any
action, suit or proceeding, and provided further that nothing in this section
7.4 shall be deemed to obviate the necessity of the Board of Directors to make
any determination that indemnification of the director, officer or employee is
proper under the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of Section 145 of the Delaware
General Corporation Law.
By-Laws - 7
<PAGE>
7.5 Fiscal Year: Except as from time to time otherwise
determined by the Board of Directors, the fiscal year of the corporation shall
end on .
----------------
By-Laws - 8
<PAGE>
CERTIFICATE OF CHANGE
OF
BEACH CONCERTS, INC.
(Under Section 805-A of the Business Corporation Law)
FIRST: The name of the corporation is BEACH CONCERTS, INC.
SECOND: The certificate of incorporation of the corporation was filed by the
Department of State on February 7, 1983.
THIRD: The certificate of incorporation of the corporation is hereby changed,
pursuant to the authorization of the Board of Directors of the corporation, so
as to change the post office address to which the Secretary of State shall mail
a copy of any process against the corporation served upon him and to change the
designation of registered agent. To accomplish said changes:
(a) The following statement of said post office address to which the
Secretary of State shall mail a copy of process is substituted:
"The post office address within the State of New York to which
the Secretary of State shall mail a copy of any process against
the corporation served upon him is c/o Corporation Service
Company, 80 State Street, Albany, New York 12207."
(b) The following statement of designation of registered agent is
substituted:
"The name and address of the registered agent of the corporation
are Corporation Service Company, 80 State Street, Albany, New
York 12207. Said registered agent is to be the registered agent
upon which process against the corporation may be served."
IN WITNESS WHEREOF, we have subscribed this document on the date
hereinafter set forth and do hereby affirm, under the penalties of perjury ,
that the statement contained therein have been examined by us and are true and
correct.
Dated:
4/16/97
Name of Signer: /s/ Howard J. Tytel
---------------------------------
Howard J. Tytel
Executive Vice President
Name of Signer: /s/ Craig G. Fox
---------------------------------
Craig G. Fox
Secretary
<PAGE>
BEACH CONCERTS, INC.
BY LAWS
ARTICLE ONE
-----------
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors,
shall be issued to shareholders specifying the name of the owner, number of
shares, and date of issue. Each certificate shall be signed by the President
and Secretary with the corporate seal affixed thereon. Each certificate shall
be numbered in the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share
of common stock, unless otherwise stated in Article of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer
ledger of the corporation. Such transfers shall be done in person or by power
of attorney. Transfers shall be completed on the surrender of the old
certificate, duly assigned.
ARTICLE TWO
-----------
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be from time
to time, at the time fixed by the directors held on the day of of
each year at a place from time to time fixed by the directors. If the stated
day is a weekend day or a legal holiday, the meeting shall be held on the
next succeeding day not a weekend day or a holiday.
SECTION TWO: The place of the annual meeting may be changed by the
Board of Directors within or without the State of incorporation for any given
year upon days notice to the shareholders. Special meetings may be held
within or without of the State of incorporation and at such time as the Board
of Directors may fix.
SECTION THREE: Special meetings of the shareholders may be called at
any time by the President or any holder(s) of a majority of the outstanding
shares of stock entitled to vote.
BY-LAWS 1
<PAGE>
SECTION FOUR: Notice of any special meeting of the shareholders shall
be given to all shareholders to their last known address by registered mail.
Notice of any special meeting of the shareholders shall state the purpose of
such meeting. Notice of a special meeting may be waived in writing either
before or after such meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of
Incorporation, all meetings of the shareholders, action may be taken by a
majority vote of the number of shares entitled to vote as represented by the
shareholders present at such meeting. Directors shall be elected by a plurality
vote. A quorum shall constitute one share over fifty percent of the outstanding
shares entitled to vote as represented by the shareholders present at such
meeting. No business may be transacted without the presence of a quorum. At any
time during any shareholders meeting, if it is determined that a quorum is no
longer present, the meeting shall be then adjourned.
SECTION SIX: Action may be taken by the shareholders without a formal
meeting by consent, if such consent is executed in writing by all of the
shareholders entitled to vote and if allowed under the laws of the State of
incorporation.
ARTICLE THREE
-------------
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire
management of the affairs and business of the corporation. The Board of
Directors shall adopt rules and regulations to manage the affairs and business
of the corporation by resolution at special or the annual meeting. A quorum
shall consist of a majority of the directors. Resolutions adopted and all
business transacted by the Board of Directors shall be done by a majority vote
of the directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of 1 member to be
elected by the shareholders at an annual meeting. The term of office shall be
one year. Vacancies may be filled by the Board of Directors prior to the
expiration of the term. Such appointment shall continue until the next annual
meeting of shareholders.
BY-LAWS 2
<PAGE>
SECTION THREE: The Board of Directors shall meet annually at the same
place of the shareholders meetings immediately following the annual meeting of
the shareholders. Special meetings of the Board of Directors may be called by
the President or any two (2) directors on ten (10) days notice, or such other
and further notice as required by the laws of the State of incorporation.
SECTION FOUR: Notice of special or regular meetings of the Board of
Directors other than the annual meeting of the Board of Directors, shall be
made by mail to the last known address of each director. Such notice shall be
mailed ten (10) days prior to such meeting and shall include time and place and
reasons for the meeting. All other requirements of the laws of the State of
incorporation for notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a
meeting of the Board of Directors shall be deemed to have assented to action
taken at such meeting as to any corporate action taken, unless a director
who did not vote in favor on such action goes on record in the minutes as
dissenting. In such a case, the dissenting director will not be deemed to
having assented to the action taken.
SECTION SIX: Directors may be removed for cause by a majority vote at
a meeting of the shareholders or Directors. Directors may be removed without
cause by a majority vote at a meeting of the shareholders.
ARTICLE FOUR
------------
OFFICERS
SECTION ONE: The officers of the corporation shall consist of a
President, Secretary and Treasurer. All officers shall be elected by the Board
of Directors and shall serve a term for compensation as fixed by the Board of
Directors. The Board of Directors may establish other offices as it may be
deem fit.
SECTION TWO: The chief executive officer shall be the President. The
president shall have management powers of the corporation. His duties shall
include but are not limited to administration of the corporation presiding over
shareholders meeting including general supervision of the policies of the
corporation as well as general management. The President shall execute
contracts, mortgages, loans and bonds under the seal of the corporation. The
President shall have other powers as determined by the Board of Directors by
resolution.
BY-LAWS 3
<PAGE>
SECTION THREE: The Secretary shall keep the minutes of meetings of the
Board of Directors and shareholder meetings. The Secretary shall have charge
of the minute books, seal and stock books of the corporation. The Secretary
shall have other powers as delegated by the President.
SECTION FOUR: The Treasurer shall have the power to manage the
financial affairs of the corporation. The Treasurer shall keep books and
records of the financial affairs and make such available to the President and
Board of Directors upon request. The Treasurer may make recommendations to the
officers and directors in regard to the financial affairs of the corporation.
SECTION FIVE: The Vice-President, if one is appointed by the Board of
Directors, shall have such powers as delegated to him by the President. Upon
the inability to perform by the President, the Vice-President shall serve as
President until such time as the President shall be able to perform or further
action by the Board of Directors. The President shall be deemed unable to
perform his duties upon written notification by the President of such inability
or resignation to the Board of Directors that the President is unable to
perform.
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until
such time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice-President shall act
as President, the Treasurer shall act as Secretary, and the Secretary shall act
as Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the
President. These duties shall be those delegated to them by the President or
the board of Directors.
SECTION EIGHT: Compensation of the officers shall be determined by the
Board of Directors.
BY-LAWS 4
<PAGE>
ARTICLE FIVE
------------
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be
executed without approval by the Board of Directors by resolution. Upon such
resolution, the President shall be authorized to execute contracts or
instruments of indebtedness as specified in the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness
shall be executed in the manner as determined by the Board of Directors by
resolution.
ARTICLE SIX
-----------
CORPORATE SEAL
The seal of the corporation shall be provided by the Board of Directors
by resolution. The seal shall be used by the President or other officers of the
corporation as provided for in these By-Laws.
ARTICLE SEVEN
-------------
AMENDMENT
These By-Laws may be amended from time to time by a majority vote of
the Board of Directors or by a majority vote of the shareholders. These By-Laws
may be repealed and new By-Laws established in the same manner as amendments.
These By-Laws will continue in full force and effect until amended or repealed
and replaced by new By-Laws.
ARTICLE EIGHT
-------------
DIVIDENDS
The Board of Directors may from time to time declare dividends to the
shareholders. These distributions may be in cash or property. No such dividends
may be made out of the capital of the corporation.
BY-LAWS 5
<PAGE>
BGP Acquisition, LLC.
Certificate of Formation
THE UNDERSIGNED, acting as an authorized signatory pursuant to
SECTION 18-204 of the Delaware Code certifies that:
1. The name of the liability company is "BGP Acquisition, LLC" (the
"COMPANY").
2. The purpose of the Company is to engage in any lawful act or activity
for which a limited liability company may be organized under the Delaware Code
of the State of Delaware (the "CODE").
3. The address of the Company's registered office in the State of
Delaware is 9 East Loockerman Street, in the city of Dover, County of Kent,
19901. The name of the Company's registered agent at such address is National
Corporate Research, Ltd.
4. In furtherance and not in limitation of the powers conferred by
statute, the Company shall be governed by a limited company operating
agreement.
5. The Company shall to the fullest extent permitted by SECTION 18-201
of the Delaware Code, as the same may be amended and supplemented, indemnify
any and all persons whom it shall have the power to indemnify under said
SECTION 18-201 from and against any and all matters, and the indemnification
provided for herein shall not be deemed exclusive of any other right to which
any person may be entitled under the limited liability company agreement, or
otherwise, as permitted under said SECTION 18-201, as to action in any capacity
in which he or she served at the request of the Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of BGP Acquisition, LLC this 2nd day of December, 1997.
BGP Acquisition, LLC
By: /s/ Maria A. Scundi
-----------------------------------------
Maria A. Scundi, Senior Paralegal II
Authorized Person
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
BILL GRAHAM ENTERPRISES, INC.
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
BILL GRAHAM ENTERPRISES, INC.
ARTICLE I - OFFICES
1.01 - PRINCIPAL OFFICE
The principal executive and business office of the corporation is
hereby fixed and located in the City and County of San Francisco, California or
such other location as the board of directors may determine.
1.02 - OTHER OFFICES
Branch or subordinate offices may at any time be established at any
place or places by the board of directors.
ARTICLE II - MEETINGS OF SHAREHOLDERS
2.01 - PLACE OF MEETINGS
All annual and all other meetings of shareholders shall be held at the
principal executive office of the corporation, or at any other place within or
without the State of California which may be designated either by the board of
directors, or by the written consent of all shareholders entitled to vote
thereat, Provided such shareholder consent is given either before or after the
meeting and filed with the secretary of the corporation.
2.02 - ANNUAL MEETINGS
The annual meetings of shareholders shall be held on the first
Thursday in April at 10:00 a.m.; provided, however, that should said day fall
upon a legal holiday, then any such annual meeting of shareholders shall be
held at the same time and place on the next day thereafter ensuing which is not
a legal holiday. At such meetings, directors shall be elected, reports of the
affairs of the corporation shall be considered, and any other business may be
transacted which is within the powers of the shareholders.
2.03 - SPECIAL MEETINGS
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by any of (i) the president, (ii) the
board of directors, (iii) the chairman of the board, or (iv) one or more
shareholders holding shares in the aggregate entitled to cast not less than 10
percent of the votes at that meeting.
If a special meeting is called by any person or persons other than the
board of directors, such person shall make a request therefor in writing,
specifying (i) the date and time of such meeting, which shall be not less than
35 nor more
<PAGE>
than 60 days after the receipt of the request, and (ii) the general nature of
the business proposed to be transacted at the meeting. Such request shall be
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the chairman of the board, the president, any vice
president or the secretary of the corporation. The officer receiving the
request shall cause notice to be given within 20 days to the shareholders
entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5,
and the notice shall set forth that a meeting will be held at the time
requested by the person or persons calling the meeting. If the notice is not
given within such 20-day period, the person(s) requesting the meeting may give
the notice.
2.04 - NOTICE OF MEETINGS
All notices of meetings of shareholders, whether annual or special,
shall be sent or otherwise given not less than 10 nor more than 60 days before
the date of the meeting, except as provided in section 2.03. The notice shall
specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be transacted, or (ii)
in the case of the annual meeting, those matters which the board of directors,
at the time of giving the notice, intends to present for action by the
shareholders. The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees whom, at the time of the
notice, management intends to present for election. The notice shall also state
the general nature of the proposal if action is proposed to be taken at any
meeting for approval of any of the following: (i) a contract or transaction in
which a director has a direct or indirect financial interest; (ii) an amendment
of the articles of incorporation; (iii) a reorganization of the corporation;
(iv) a voluntary dissolution of the corporation; or (v) a distribution in
dissolution other than in accordance with the rights of any outstanding
preferred shares. Notwithstanding the absence of specific notice thereof, any
such action may nevertheless be presented to the meeting and be validly acted
upon by the shareholders if approved by all shareholders entitled to vote
thereon, unless they sign waivers of notice specifying the general nature of
the proposal so approved.
2.05 - MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any shareholders' meeting shall be given either personally
or by first-class mail or telegraphic or written communication, charges
prepaid, addressed to the shareholder at the address of that shareholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or has been so given, notice shall be deemed to have been
given if published at least once in a newspaper of general circulation in the
county where that office is located or in any manner permitted by law. Notice
shall be deemed to have been given at the time when delivered personally,
deposited in the mail, delivered to a common carrier for transmission to the
recipient, actually transmitted by electronic means to the recipient by the
person giving the notice, or sent by other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting may be executed by the secretary, assistant secretary, or
any transfer agent of the corporation giving the notice, and filed and
maintained in the minute book of the corporation.
-2-
<PAGE>
2.06 - ADJOURNED MEETINGS AND NOTICE THEREOF
Any shareholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the majority of
the shares which are represented at the meeting either in person or by proxy,
but in the absence of a quorum.
It shall not be necessary to give any notice of an adjournment or of
the business to be transacted at an adjourned meeting other than by
announcement at the meeting at which such adjournment is taken. However, when
any shareholders' meeting, either annual or special, is adjourned for more than
45 days, or if after the adjournment a new record date is fixed for the
adjourned meeting notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting. At any
adjourned meetings, the corporation may transact any business that might have
been transacted at the regular meeting.
2.07 - RECORD DATE FOR SHAREHOLDERS OF RECORD
For purposes of determining which shareholders are entitled to receive
notice of any meeting, to vote, or to give consent to corporate action without
a meeting, the board of directors may fix a record date in advance of such
meeting or corporate action which shall not be less than 10 nor more than 60
days before any such meeting or any such action without a meeting. Only
shareholders of record at the close of business on the date so fixed are
entitled to notice and to vote or to give consent, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation
after the record date, except as otherwise provided in the articles of
incorporation, by agreement, or in the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the 60th day before the date of such other action,
whichever is later.
2.08 - VOTING AT MEETINGS
Except as otherwise provided in the articles of incorporation and in
the case of cumulative voting for directors, each shareholder is entitled to
one vote per share. The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by ballot if
demanded by any shareholder before the voting has begun. On any matter other
than the election of directors, any shareholder may vote part of the shares in
favor of the proposal and refrain from voting the remaining shares or vote them
against the proposal, but if the shareholder fails to specify the number of
shares which the shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's
-3-
<PAGE>
approving vote is with respect to all shares that the shareholder is entitled
to vote. The affirmative vote of a majority of the shares represented and
voting, provided such shares voting affirmatively also constitutes a majority
of the number of shares required for a quorum, shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by California General Corporation Law or by the articles of
incorporation. Every shareholder entitled to vote at any election for directors
shall have the right to cumulate his votes by (i) giving one candidate a number
of votes equal to the number of directors to be elected multiplied by the
number of votes to which his shares are entitled, or (ii) distributing such
cumulated votes on the same principle among as many candidates as he chooses;
provided that the name of such candidate has been placed in nomination prior to
the voting and that at least one shareholder has given notice at the meeting,
prior to the voting, of an intention to cumulate votes. In any election of
directors, the candidates receiving the highest number of votes, up to the
number of directors to be elected, shall be elected. Votes against a director
or not cast shall have no effect.
2.09 - QUORUM
The presence in person or by proxy of persons entitled to vote a
majority of the voting shares at any meeting shall constitute a quorum of the
shareholders for the transaction of business.
The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of one or more shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
2.10 - CONSENT OF ABSENTEES
The transactions of any meeting of shareholders, either annual or
special, however called and noticed and wherever held, shall be as valid as
though made at a meeting duly held after regular call and notice if a quorum is
present either in person or by proxy and if, either before or after the
meeting, each of the shareholders entitled to vote who was not present in
person or by proxy signs a written waiver of notice or a consent to the holding
of such meeting or an approval of the minutes thereof. The waiver of notice or
consent need not specify either the business to be transacted or the purpose of
any annual or special meeting of shareholders, unless the action taken or
proposed to be taken is for approval of any of those matters specified in
Section 2.04. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance at a meeting, in person or by proxy, shall also constitute
a waiver of notice of that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
has not been lawfully called or convened, and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
required by law to be included in the notice of the meeting but not so
included, if that objection is expressly made at the meeting.
-4-
<PAGE>
2.11 - ACTION WITHOUT MEETING
Except as may be limited by the articles of incorporation and except
for the election of directors, any action which may be taken by vote of the
shareholders at any annual or special meeting may be taken without a meeting
and without prior notice if a consent in writing setting forth the action so
taken is signed by the holders of outstanding shares 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. Directors may be elected by written consent without a meeting only
if the written consents of all outstanding shares entitled to vote are
obtained, except that a vacancy in the board (other than a vacancy created by
removal of a director) not filled by the board may be filled by the written
consent of the holders of a majority of the outstanding shares entitled to
vote.
All such consents shall be filed and maintained in the corporate
records. Any shareholder (or the shareholder's proxyholders, or a transferee of
the shares or a personal representative of the shareholder or their respective
proxy holders) giving a written consent may revoke the consent only by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary of the corporation. Such revocation is effective upon its
receipt by the secretary of the corporation.
Unless the consents of all shareholders entitled to vote have been
solicited in writing:
(1) Notice of shareholder approval without a meeting by less than
unanimous written consent shall be given at least 10 calendar days
before the consummation of the action authorized by such approval, if
the corporate action concerns (i) a contract or transaction in which a
director has a direct or indirect financial interest under Section 310
of the California Corporations Code, (ii) indemnification of agents of
the corporation, (iii) reorganization of the corporation, or (iv) a
distribution in dissolution other than in accordance with the rights
of the outstanding preferred shares; and
(2) Prompt notice shall be given of any other corporate action
approved by shareholders without a meeting by less than unanimous
written consent.
All such notices shall be given in the manner provided by Section 2.05.
2.12 - PROXIES
Every person entitled to vote for directors or on any other matter
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the shareholder's
attorney-in-fact. A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked, or by
attendance at the meeting and voting in person by the person executing the
proxy, or by a subsequent proxy executed by the same person and presented at
the meeting; or (ii) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote pursuant to that
proxy is counted;
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provided, however, that no proxy shall be valid after the expiration of 11
months from the date of the proxy, unless another term of longer or shorter
duration is specified in the proxy. The revocability of a proxy which states on
its face that it is irrevocable shall be governed by the provisions of Sections
705(e) and 705(f) of the Corporations Code of California.
ARTICLE III - DIRECTORS
3.01 - POWERS
Except as reserved to the shareholders by law, the articles of
incorporation or these bylaws, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall
be controlled by, the board of directors. Without limiting the generality of
the foregoing powers, the directors shall have the following powers:
First: To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law or with the articles of incorporation or these bylaws, as they may
deem best.
Second: To select and remove the officers, agents and employees of the
corporation, to prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or with these bylaws
and to fix their compensation.
Third: To change the principal executive and business office of the
corporation from one location to another as provided in Section 1.01; to fix
and locate from time to time one or more branch offices of the corporation
within or without the State of California, as provided in Section 1.02; to
designate any place within or without the State of California for the holding
of any shareholders' meeting or meetings except annual meetings; and to adopt,
make and use a corporate seal, to prescribe the forms of certificates of stock
and to alter the form of such seal and of such certificates from time to time
as in their judgment they may deem best, provided that such seal and such
certificates shall at all times comply with the provisions of law.
Fourth: To authorize the issue of shares of stock of the corporation
from time to time, upon such terms as may be lawful, as dividends or in
consideration of money paid, labor done or services actually rendered to the
corporation or for its benefit or in its formation or reorganization, debts or
securities cancelled, or tangible or intangible property actually received; but
neither promissory notes of the purchaser, unless secured by property other
than the shares acquired or otherwise permitted by Section 408 of the General
Corporation Law, nor future services shall constitute payment or part payment
for shares of the corporation.
Fifth: To borrow money and incur indebtedness for the purposes of the
corporation and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Sixth: To designate, by resolution adopted by a majority of the
authorized number of directors, one or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate
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one or more directors as alternate members of any committee, who may replace
any absent member at any meeting of the committee. Any such committee shall
have all the authority of the board to the extent provided in the resolution of
the board or in the bylaws, except with respect to:
(a) The approval of any action for which, under the General
Corporation Law of California, also requires approval of the shareholders or
approval of the outstanding shares;
(b) The filling of vacancies on the board or in any committee;
(c) The fixing of compensation of the directors for serving on the
board or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation, except at a
rate, in a periodic amount or within a price range set forth in the articles or
determined by the board; or
(g) The appointment of other committees of the board or the members
thereof.
Seventh: To declare dividends at such times and in such amounts as the
condition of the affairs of the corporation may warrant.
Eighth: Generally to exercise all of the powers and to perform all of
the acts and duties that from time to time may be permitted by law appertaining
to their office.
3.02 - NUMBER OF DIRECTORS
The authorized number of directors of the corporation shall be two
until changed by an amendment of this bylaw.
3.03 - ELECTION AND TERM OF OFFICE
The directors shall be elected at each annual meeting of shareholders
and may be elected at any special meeting of shareholders held for that
purpose. Each director shall hold office until his successor is elected and
qualified, or until his earlier death, resignation, removal or ineligibility.
3.04 - REMOVAL
A director may be removed f or cause by (i) the board, when such
director has been convicted of a felony or declared incompetent by court order,
or (ii) the superior court, at the suit of at least 10% of the shareholders of
any class of shares having found that the director has either committed
fraudulent or dishonest acts, or has grossly abused his authority with
reference to the corporation.
A director may be removed without cause by a majority vote of all
outstanding shares, provided that (i) where cumulative voting is in effect,
such director may not be removed over the objection of the number of shares
required to elect him, and (ii) where the articles of incorporation provide for
the election of a director by the shareholders of a certain
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class or series of shares, such director may be removed only by the majority
vote of the outstanding shares of such class or series.
Except as provided in this Section 3.04, and any reduction of the
authorized number of directors notwithstanding, a director may not be removed
prior to the expiration of such director's term of office.
3.05 - VACANCIES
Vacancies in the board of directors may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining
director. A vacancy in the board of directors shall be deemed to exist (i) in
case of the death, resignation, ineligibility or removal of any director, (ii)
if the authorized number of directors is increased, or (iii) if the
shareholders fail, at any annual or special meeting of shareholders at which
any director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors. In the event that such a
vacancy is created by an event other than removal, any election by written
consent of the shareholders must be signed by holders of a majority of the
outstanding shares. If the board of directors accepts the resignation of a
director tendered to take effect at a future time, the board or the
shareholders shall have the power to elect a successor to take office when the
resignation is to become effective.
3.06 - MEETINGS BY TELEPHONE CONFERENCE
Members of the board may participate in a meeting through use of
conference telephone or similar communication equipment, so long as all members
participating in such meeting can hear one another.
3.07 - ACTION WITHOUT MEETING
Any action required or permitted to be taken by the board of directors
or any committee thereof may be taken without a meeting if each member of the
board consents in writing to such action. Such consents shall be filed with the
minutes of the meetings of the board.
3.08 - ORGANIZATION MEETING
Immediately following each annual meeting of shareholders, the board
of directors shall hold a regular meeting for the purpose of organization,
election of officers and the transaction of other business. Notice of such
meeting is hereby dispensed with.
3.09 - SPECIAL MEETINGS
Special meetings of the board of directors for any purpose or purposes
may be called at any time by (i) the chairman of the board, (ii) the president,
(iii) any vice president, (iv) the secretary, or (v) any two directors.
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Written notice of the time and place of special meetings shall be
delivered personally to the directors or sent to each director by mail or by
other form of written communication, charges prepaid, addressed to him at his
address as it appears upon the records of the corporation or, if it is not so
shown or is not readily ascertainable, at the place in which the meetings of
directors are regularly held. In case such notice is mailed, it shall be
deposited in the United States mail at least four days prior to the date of the
meeting. In case such notice is delivered personally or telegraphed, it shall
be so delivered or deposited with the telegraph company at least 48 hours prior
to the time of the meeting.
3.10 - ADJOURNMENT
A majority of the directors present, whether or not a quorum is
present, may adjourn any directors' meeting to another time and place. If a
meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given in the manner specified in Section 3.09
prior to the time of the adjourned meeting to the directors who were not
present at the time of adjournment.
3.11 - WAIVER OF NOTICE
The transactions at any meeting of the board of directors, however
called and noticed, or wherever held, shall be as valid as though such
transactions had occurred at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice of or consent to holding
the meeting or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
3.12 - QUORUM
A majority of the authorized number of directors then holding office
shall constitute a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present shall be
the act of the board of directors, unless a greater number is required by law,
the articles of incorporation or these bylaws. However, a meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors if any action taken is approved by at least a
majority of the required quorum for such meeting. The provisions of this
Section 3.12 shall apply to action taken by any committee from time to time
designated by the board of directors.
ARTICLE IV - OFFICERS
4.01 - OFFICERS
The officers of the corporation shall be a president, a secretary, a
treasurer, and such other officers with such titles and duties as may be
appointed in accordance with the provisions of Section 4.09. Any number of
offices may be held by the same person. The president shall be the chief
executive officer and the treasurer shall be the chief financial officer.
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4.02 - ELECTION
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 4.04 or 4.09, shall be
chosen annually by the board of directors; and each officer shall hold his
office until he has resigned or removed or is otherwise disqualified to serve
and his successor has been elected and qualified.
4.03 - REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by a
majority of the directors at the time in office, at any regular or special
meeting of the board, or, except in the case of an officer chosen by the board
of directors, by any officer upon whom such power of removal may be conferred
by the board of directors.
Any officer may resign at any time by giving written notice to the
board of directors or to the president or to the secretary of the corporation.
Any such resignation shall take effect at the date of the receipt of such
notice or any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
4.04 - VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
4.05 - CHAIRMAN OF THE BOARD
The chairman of the board, if one has been appointed, shall, if
present, preside at all meetings of the board of directors and exercise and
perform all such other powers and duties as may from time to time be assigned
to him by the board of directors or prescribed by these bylaws.
4.06 - PRESIDENT
The president, subject to the board of directors, shall have general
supervision, direction and control of the business and of other officers and
employees of the corporation. He shall preside at all meetings of the
shareholders and, if there is no regular, appointed chairman of the board or if
such chairman is absent, at all meetings of the board of directors. He shall be
an ex officio member of all standing committees, including the executive
committee, if any, and shall have general powers and duties of management,
together with such other powers and duties as may be prescribed by the board of
directors.
4.07 - SECRETARY
The secretary shall keep, or cause to be kept, a book of minutes at
the principal executive and business office, or such other place as the board
of directors may order, of all meetings of directors and shareholders, with the
time and place of holding, whether regular or special and, if special, how
authorized, the notice thereof given, the names of those
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present at directors' meetings, the number of shares present or represented at
shareholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive and business office or at the office of the corporation's transfer
agent, a share register or a duplicate share register showing the names of the
shareholders and their addresses, the number and classes of shares held by
each, the number and the date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered for
cancellation.
The secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the board of directors required by these
bylaws or by law to be given, shall keep the seal of the corporation in safe
custody and shall have such other powers and shall perform such other duties as
may be prescribed by the board of directors or the bylaws.
4.08 - TREASURER
The chief financial officer shall be the treasurer. The treasurer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares.
The treasurer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositories as may be
designated by the board of directors. He shall be responsible for the proper
disbursement of the funds of the corporation as may be ordered by the board of
directors and shall render to the president or directors, whenever they request
it, an account of all of his transactions as treasurer and of the financial
condition of the corporation. The treasurer shall prepare a proper annual
budget of income and expenses for each calendar year, revised quarterly, for
approval of or revision by the board of directors and shall be responsible for
the handling of finances in connection therewith. He shall have such other
powers and shall perform such other duties as may be prescribed by the board of
directors.
4.09 - SUBORDINATE OFFICERS
The board of directors may appoint such vice presidents, assistant
treasurers and assistant secretaries and other subordinate officers as the
business of the corporation may require, each of whom shall hold office for
such period, have such authority and perform such duties as are provided in
these bylaws or as the board of directors may from time to time determine.
In the absence or disability of the president, treasurer or secretary,
the vice presidents, assistant treasurers and assistant secretaries,
respectively, in order of their rank as fixed by the board of directors or, if
not ranked, the subordinate officer designated by the board of directors shall
perform all the duties of such absent or disabled officer and, when so acting,
shall have all the powers of and be subject to all the restrictions upon such
officer. Each subordinate officer shall have such other powers and shall
perform such other duties as from time to time may be prescribed for him by the
board of directors or these bylaws.
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ARTICLE V - SHARES OF STOCK
5.01 - SHARE CERTIFICATES
Certificates representing shares of the capital stock of the
corporation shall be in such form as shall be approved by the board of
directors, consistent with the articles of incorporation and the laws of the
State of California. A certificate or certificates for shares of the capital
stock of the corporation shall be issued to each shareholder when such shares
are fully paid, and the board of directors may authorize the issuance of
certificates or shares as partly paid provided that these certificates shall
state the amount of the consideration to be paid for them and the amount paid.
All such certificates shall be signed by (i) the chairman or vice chairman of
the board or the president or a vice president, and (ii) by the treasurer or an
assistant financial officer or the secretary or any assistant secretary,
certifying the number of shares and the class or series of shares issued to the
shareholder and evidenced by such certificate. The corporation may issue, sell
or transfer fractional shares.
5.02 - TRANSFER OF SHARES
Subject to the provisions of applicable securities and other laws and
any other valid contractual and other restrictions on transfer of shares, upon
the surrender to the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
5.03 - LOST OR DESTROYED CERTIFICATE
The holder of any shares of stock of the corporation shall immediately
notify the corporation of any loss or destruction of the certificate therefor,
and the corporation may issue a new certificate in the place of any certificate
theretofore issued by it alleged to have been lost or destroyed, upon approval
of the board of directors. The board may, in its discretion, as a condition to
authorizing the issue of such new certificate, require the owner of the lost or
destroyed certificate, or his legal representative, to make proof satisfactory
to the corporation of the loss or destruction thereof and to give the
corporation a bond or other security, in such amount and with such surety or
sureties as the corporation may determine, as indemnity against any claim that
may be made against the corporation on account of any such certificate so
alleged to have been lost or destroyed.
ARTICLE VI - MISCELLANEOUS
6.01 - INDEMNITY OF OFFICERS, DIRECTORS AND EMPLOYEES
The corporation shall, to the fullest extent permitted by the
California General Corporation Law (the "Code") and in excess of that which is
otherwise provided by Code Section 317, indemnify each of the directors,
officers, and
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employees of the corporation and each person who is or was serving at the
request of the corporation as a director, officer, or employee of another
corporation (including without limitation direct and indirect subsidiaries of
the corporation) or a partnership, joint venture, trust, or other enterprise
(all such persons being hereinafter collectively referred to as "Indemnified
Persons") against all judgments, fines, penalties, amounts paid in settlement
(if the settlement is approved in advance by the corporation (or, where
applicable, such other corporation or other enterprise described in this
sentence), which approval shall not be unreasonably withheld of delayed), and
"expenses" (as hereinafter defined) actually and reasonably incurred by the
Indemnified Person in connection with any "proceeding" (as hereinafter defined)
involving the Indemnified Person by reason of the fact that the Indemnified
Person is or was a director, officer, or employee of the corporation or, acting
at the request of the corporation, any other corporation, partnership, joint
venture, trust, or other enterprise. For purposes hereof, "expenses" include by
way of illustration but not limitation all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being prepared to be a witness in any
"proceeding." For purposes hereof, a "proceeding" shall include by way of
illustration but not limitation any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing, or any
other proceeding, whether civil, criminal, administrative, or investigative,
and whether brought by or on behalf of a third party or by or on behalf of the
corporation.
Upon written request to the Board in each specific case by an
Indemnified Person seeking indemnification, the Board shall promptly authorize
indemnification consistent with the terms of the preceding paragraph if the
Board determines that the indemnification is not prohibited by the Code,
including by reason of the requirements of Code Sections 204(a)(10) and (11)
and, in the case of an action by or in the right of the corporation to procure
a judgment in its favor, subsections (1) , (2) , and (3) of Code Section
317(c). The termination of any proceeding by judgment, order, settlement,
conviction, or upon plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that an Indemnified Person did not act in good
faith and in a manner which the Indemnified Person reasonably believed to be in
or not opposed to the best interests of the corporation or, with respect to any
criminal proceeding, had no reasonable cause to believe that the conduct of the
Indemnified Person was unlawful.
If an Indemnified Person is entitled to indemnification by the
corporation for some or a portion of any judgments, fines, penalties, amounts
paid in settlement, or expenses actually and reasonably incurred by the
Indemnified Person in connection with any proceeding, but not, however, for the
total amount thereof, the corporation shall nevertheless indemnify the
Indemnified Person for the portion of such amounts to which the Indemnified
Person is entitled.
Upon written request to the Board in each specific case by an
Indemnified Person, the Board shall promptly authorize the advancement of
attorneys' fees and other expenses incurred by the Indemnified Person prior to
the final disposition of a proceeding in which the Indemnified Person is
involved by reason of the fact that the Indemnified Person is or was a
director, officer, or employee of the corporation or, acting at the request of
the corporation, any other
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corporation, partnership, joint venture, trust, or other enterprise, but only
if the Board obtains the written agreement of the Indemnified Person, in a form
satisfactory to the Board, to repay the advances if and to the extent that it
is ultimately determined that the Indemnified Person is not entitled to be
indemnified by the corporation for the attorneys' fees and other expenses so
advanced.
If an Indemnified Person makes a written request to the Board for
indemnification and the requested indemnification is not paid in full by the
corporation within forty-five (45) days after the date of the written request,
the Indemnified Person shall also be indemnified for the attorneys' fees and
other expenses of any proceeding brought by the Indemnified Person against the
corporation to recover the unpaid requested indemnified amount. It shall be a
defense in any such proceeding that the Indemnified Person has not satisfied
the standards of conduct which make it permissible under applicable law for the
corporation to indemnify the Indemnified Person for the amount claimed, but the
burden of proving such defense shall be on the corporation and the Indemnified
Person shall be entitled to receive interim payments of attorneys' fees and
other expenses in connection with the proceeding unless and until such defense
is finally adjudicated by court order or judgment from which no further right
of appeal exists.
If, at the time of the receipt of a written request for
indemnification by an Indemnified Person, the corporation has director and
officer liability insurance in effect, the corporation shall give prompt notice
of the commencement of the proceeding described in the notice to the
corporation's insurers in accordance with the procedures set forth in the
respective policies. The corporation shall thereafter take all necessary or
appropriate action to cause such insurers to pay on behalf of the Indemnified
Person all amounts payable as a result of such proceeding in accordance with
the terms of such policies. The provisions of this paragraph shall not be
construed to impose upon the corporation any obligation to obtain or maintain
director and officer liability insurance.
The indemnification rights conferred hereby shall continue as to any
Indemnified Person who has ceased to be a director, officer, or employee of the
corporation or any other corporation, partnership, joint venture, trust, or
other enterprise for which the Indemnified Person was serving as a director,
officer, or employee at the request of the corporation, and shall inure to the
benefit of the heirs, executors, administrators, and any other
successors-in-interest of the Indemnified Person.
In the event of any change after the date of the adoption by the
corporation of this Section 6.01 in any applicable law, statute, or rule which
expands the right of a California corporation to indemnify its directors,
officers, or employees, such change shall be ipso facto within the purview of
the corporation's obligations hereunder. In the event of any change in any
applicable law, statute, or rule which narrows the right of a California
corporation to indemnify its directors, officers, or employees, such change, to
the extent not otherwise required by such law, statute, or rule to be applied
to the corporation, shall have no effect on the indemnification obligations of
the corporation.
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6.02 - SHAREHOLDER INSPECTION OF ARTICLES AND BYLAWS
The corporation shall keep at its principal executive and business
office the original or a copy of the articles of incorporation and the bylaws
and any amendments thereto, certified by the secretary, which shall be open to
inspection by shareholders at all reasonable times during office hours.
6.03 - MAINTENANCE AND INSPECTION OF RECORDS OF SHAREHOLDERS
The corporation shall keep at its principal executive and business
office or at the office of its transfer agent or registrar (if one has been
appointed), as determined by resolution of the board of directors, a record of
its shareholders, giving the names and addresses of all shareholders and the
number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at least 5%
in the aggregate of the outstanding voting shares of the corporation may (i)
inspect and copy the records of shareholders' names, addresses and
shareholdings, during usual business hours on five business days' prior written
demand on the corporation, and (ii) obtain from the transfer agent of the
corporation, on written demand and on the tender of such transfer agent's usual
charges for such list, a list of the names and addresses of the shareholders
who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of demand.
This list shall be made available to any such shareholder or shareholders by
the transfer agent on or before the later of five business days after the
demand is received or the date specified in the demand as the date as of which
the list is to be compiled. The record of shareholders shall also be open to
inspection on the written demand of any shareholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose reasonably
related to the holder's interests as a shareholder or as the holder of a voting
trust certificate. Any inspection and copying under this Section may be made in
person or by an agent or attorney of the shareholder or holder of a voting
trust certificate making the demand.
6.04 - SHAREHOLDER INSPECTION OF CORPORATE RECORDS
The accounting books and records and minutes of proceedings of the
shareholders and the board of directors and any committee or committees of the
board of directors shall be kept at such place or places designated by the
board of directors or, in the absence of such designation, at the principal
executive and business office of the corporation. The minutes shall be kept in
written form, and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into written form.
The minutes and accounting books and records shall be open to inspection upon
the written demand of any shareholder or holder of a voting trust certificate,
at any reasonable time during usual business hours, for a purpose reasonably
related to the holder's interests as a shareholder or as the holder of a voting
trust certificate. The inspection may be made in person or by an agent or
attorney and shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
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6.05 - INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable time to
inspect all books, records and documents of every kind and the physical
properties of the corporation and each of its subsidiary corporations. This
inspection by a director may be made in person or by an agent or attorney, and
the right of inspection includes the right to copy and make extracts of
documents.
6.06 - REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The president or, in the event of his absence or inability to serve,
any vice president and the secretary or assistant secretary of this corporation
are authorized to vote, represent and exercise, on behalf of this corporation,
all rights incidental to any and all shares of any other corporation standing
in the name of this corporation. The authority herein granted to such officers
to vote or represent on behalf of this corporation any and all shares held by
this corporation in any other corporation may be exercised either by such
officers in person or by any person authorized to do so by proxy or power of
attorney duly executed by such officers.
6.07 - ANNUAL REPORT
The annual report to shareholders referred to in Section 1501(a) of
the California Corporations Code is expressly waived subject to the limitations
thereof, but the board of directors of the corporation may cause to be sent to
the shareholders, not later than 120 days after the close of the fiscal or
calendar year, an annual report in such form as may be deemed appropriate by
the board of directors.
6.08 - ANNUAL STATEMENT OF GENERAL INFORMATION
Within 90 days of incorporation and annually thereafter, the
corporation shall file with the Secretary of State, on the prescribed form, a
statement setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent directors, the names
and complete business or residence addresses of the chief executive officer,
secretary and chief financial officer, the street address of its principal
executive office or principal business office in this state, and the general
type of business constituting the principal business activity of the
corporation, together with a designation of the agent of the corporation for
the purpose of service of process, all in compliance with section 1502 of the
California Corporations Code.
ARTICLE VII - AMENDMENTS TO BYLAWS
7.01 - AMENDMENT BY SHAREHOLDERS
New bylaws may be adopted or these bylaws may be amended or repealed
by the vote or written consent of the shareholders entitled to exercise a
majority of the voting power of the corporation, except as otherwise provided
by either these bylaws or the articles of the corporation; provided, however,
that if the articles of incorporation set forth the number
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of authorized directors of the corporation, the authorized number of directors
may be changed only by an amendment of the articles of incorporation.
7.02 - AMENDMENT BY DIRECTORS
Subject to the rights of the shareholders as provided in Section 7.01
to adopt, amend or repeal bylaws, bylaws may be adopted, amended, or repealed
by the board of directors; provided, however, that the board of directors may
adopt a bylaw or amendment of a bylaw changing the authorized number of
directors only for the purpose of fixing the exact number of directors within
the limits specified in the articles of incorporation or in Section 3.02 of
these bylaws.
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<PAGE>
CERTIFICATE OF INCORPORATION
BROADWAY CONCERTS, INC.
Under Section 402 of the Business Corporation Law.
The undersigned, for the purpose of forming a corporation pursuant to
Section 402 of the Business Corporation
Law of the State of New York, does hereby certify and set forth:
FIRST: The name of the corporation is BROADWAY CONCERTS, INC.
SECOND: The purpose for which the corporation is formed are:
To engage in any lawful act or activity for which corporations may be
organized under the business corporation law, provided that the corporation is
not formed to engage in any act or activity which requires the act or approval
of any state official, department, board, agency or other body without such
approval or consent first being obtained.
To carry on a general mercantile, industrial, investing and trading
business in all its branches; to devise, invent, manufacture, fabricate,
assemble, install, service, maintain, alter, buy, sell, import, export, license
as licensor or licensee, lease as lessor or lessee, distribute, job, enter
into, negotiate, execute, acquire, and assign contracts in respect of, acquire,
receive, grant, and assign licensing arrangements, options, franchises, and
other rights in respect of and generally deal in and with at wholesale and
retail, as principal, and as sales, business, special, or general agent,
representative, broker, factor, merchant, distributor, jobber, advisor, or in
any other lawful capacity, goods, wares, merchandise, commodities, and
unimproved, improved, finished, processed and other real, personal and mixed
property of any and all kinds, together with the components, resultants, and
by-products thereof.
To create, manufacture, contract for, buy, sell, import, export,
distribute, job and generally deal in and with, whether at wholesale or retail,
and as principal, agent, broker, factor, commission merchant, licensor,
licensee or otherwise, any and all kinds of goods, wares, and merchandise, and
in connection therewith or independent thereof, to establish and maintain, by
any manner or means, buying offices, distribution centers, specialty and other
shops, stores, mail-order establishments, concessions, leased departments, and
any and all other departments, sites and locations necessary, convenient or
useful in the furtherance of any business of the corporation.
To develop, experiment with, manufacture, fabricate, produce,
assemble, buy, lease or otherwise acquire, hold, own, operative, use, install,
equip, maintain, service, process, possess, repossess, remodel, recondition,
transport, import, export, sell, lease or otherwise dispose of any generally to
deal in and with any and all kinds of raw materials, products, manufactured
articles and products, equipment, machinery, devices, systems, parts, tools and
implements, apparatus, and goods, wares merchandise and tangible property of
every kind, used or capable of being used for any purpose whatsoever, and
wheresoever located.
To acquire by purchase, subscription, underwriting or otherwise, and
to own, hold for investment, or otherwise, and to use, sell, assign, transfer,
mortgage, pledge, exchange or otherwise dispose of real and personal property
of every sort and description and wheresoever situated, including shares of
stock, bonds, debentures, notes, scrip, securities, evidences of indebtedness,
contracts or obligations of any corporation or association, whether domestic or
foreign, or of any firm or individual or of the United States or any state,
territory or dependency of the United States or any foreign country, or any
municipality or local authority within or without the United States, and also
to issue in exchange therefor, stocks, bonds or other securities or evidences
of indebtedness of this corporation and, while the owner or holder of any such
property, to receive, collect and dispose of the interest, dividends and income
on or from such property and
<PAGE>
to possess and exercise in respect thereto all of the rights, powers and
privileges of ownership, including all voting powers thereon.
To construct, build, purchase, lease or otherwise acquire, equip,
hold, own, improve, develop, manage, maintain, control, operate, lease,
mortgage, create liens upon, sell, convey or otherwise dispose of and turn to
account, any and all plants, machinery, works, implements and things or
property, real and personal, of every kind and description, incidental to,
connected with, or suitable, necessary or convenient for any of the purposes
enumerated herein, including all or any part or parts of the properties,
assets, business and goodwill of any persons, firms, associations or
corporations.
The powers, rights and privileges provided in this certificate are not
to be deemed to be in limitation of similar, other or additional powers, rights
and privileges granted or permitted to a corporation by the Business
Corporation Law, it being intended that this corporation shall have all rights,
powers and privileges granted or permitted to a corporation by such statute.
THIRD: The office of the corporation is to be located in the County of
New York, State of New York.
FOURTH: The aggregate number of shares which the corporation shall
have the authority to issue is Two Hundred (200), all of which shall be without
par value.
FIFTH: The Secretary of State is designated as the agent of the
corporation upon whom process against it may be served. The post office address
to which the Secretary of State shall mail a copy of any process against the
corporation served on him is:
Ron Delsener
c/o Delsener/Slater Enterprises, Ltd.
27 East 67th Street
New York, New York 10021
SIXTH: The personal liability of directors to the corporation or its
shareholders for damages for any breach of duty in such capacity is hereby
eliminated except that such personal liability shall not be eliminated if a
judgment or other final adjudication adverse to such director establishes that
his acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled or that his acts
violated Section 719 of the Business Corporation Law.
IN WITNESS WHEREOF, this certificate has been subscribed to this 7th
day of January, 1994 by the undersigned who affirms that the statements made
herein are true under the penalties of perjury.
/s/Gerald Weinberg
-------------------
GERALD WEINBERG
90 State Street
Albany, New York
2
<PAGE>
THE CONNECTICUT CONCERT COMPANY, INC.
BY LAWS
ARTICLE ONE
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors, shall be
issued to shareholders specifying the name of the owner, number of shares, and
date of issue. Each certificate shall be signed by the President and Secretary
with the corporate seal affixed thereon. Each certificate shall be numbered in
the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share of common
stock, unless otherwise stated in Article of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer ledger of
the corporation. Such transfers shall be done in person or by power of attorney.
Transfers shall be completed on the surrender of the old certificate, duly
assigned.
ARTICLE TWO
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be held from time to
time, at the time fixed by the directors at a place from time to time fixed by
the directors. If the stated day is a weekend day or a legal holiday, the
meeting shall be held on the next succeeding day not a weekend day or a holiday.
SECTION TWO: The place of the annual meeting may be changed by the Board of
Directors within or without the State of incorporation for any given year upon
__ days notice to the shareholders. Special meetings may be held within or
without of the State of incorporation and at such time as the Board of Directors
may fix.
SECTION THREE: Special meetings of the shareholders may be called at any time by
the President or any holder(s) of at least ten percent of the outstanding
capital stock.
<PAGE>
SECTION FOUR: Notice of any special meeting of the shareholders shall be given
to all shareholders to their last known address by registered mail. Notice of
any special meeting of the shareholders shall state the purpose of such meeting.
Notice of a special meeting may be waived in writing either before or after such
meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of Incorporation,
all meetings of the shareholders, action may be taken by a majority vote of the
number of shares entitled to vote as represented by the shareholders present at
such meeting. Directors shall be elected by a plurality vote. A quorum shall
constitute one share over fifty percent of the outstanding shares entitled to
vote as represented by the shareholders present at such meeting. No business may
be transacted without the presence of a quorum. At any time during any
shareholders meeting, if it is determined that a quorum is no longer present,
the meeting shall be then adjourned.
SECTION SIX: Action may be taken by the shareholders without a formal meeting by
consent, if such consent is executed in writing by all of the shareholders
entitled to vote and if allowed under the laws of the State of incorporation.
ARTICLE THREE
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire management
of the affairs and business of the corporation. The Board of Directors shall
adopt rules and regulations to manage the affairs and business of the
corporation by resolution at special or the annual meeting. A quorum shall
consist of a majority of the directors. Resolutions adopted and all business
transacted by the Board of Directors shall be done by a majority vote of the
directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of ___member to be elected by
the shareholders at an annual meeting. The term of office shall be one year.
Vacancies may be filled by the Board of Directors prior to the expiration of the
term. Such appointment shall continue until the next annual meeting of
shareholders.
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<PAGE>
SECTION THREE: The Board of Directors shall meet annually at the same place of
the shareholders meetings immediately following the annual meeting of the
shareholders. Special meetings of the Board of Directors may be called by the
President or any two (2) directors on ten (10) days notice, or such other and
further notice as required by the laws of the State of incorporation.
SECTION FOUR: Notice of special or regular meetings of the Board of Directors
other than the annual meeting of the Board of Directors, shall be made by mail
to the last known address of each director. Such notice shall be mailed ten (10)
days prior to such meeting and shall include time and place and reasons for the
meeting. All other requirements of the laws of the State of incorporation for
notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a meeting of
the Board of Directors shall be deemed to have assented to action taken at such
meeting as to any corporate action taken, unless a director who did not vote in
favor on such action goes on record in the minutes as dissenting. In such a
case, the dissenting director will not be deemed to having assented to the
action taken.
SECTION SIX: Directors may be removed without cause by a vote not less than two
thirds of the issued and outstanding shares entitled to vote at a meeting of the
shareholders.
ARTICLE FOUR
OFFICERS
SECTION ONE: The officers of the corporation shall consist of a President,
Secretary and Treasurer. All officers shall be elected by the Board of Directors
and shall serve a term for compensation as fixed by the Board of Directors. The
Board of Directors may establish other offices as it may be deem fit.
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<PAGE>
SECTION TWO: The chief executive officer shall be the President. The president
shall have management powers of the corporation. His duties shall include but
are not limited to administration of the corporation presiding over shareholders
meeting including general supervision of the policies of the corporation as well
as general management. The President shall execute contracts, mortgages, loans
and bonds under the seal of the corporation. The President shall have other
powers as determined by the Board of Directors by resolution.
SECTION THREE: The Secretary shall keep the minutes of meetings of the Board of
Directors and shareholder meetings. The Secretary shall have charge of the
minute books, seal and stock books of the corporation. The Secretary shall have
other powers as delegated by the President.
SECTION FOUR: The Treasurer shall have the power to manage the financial affairs
of the corporation. The Treasurer shall keep books and records of the financial
affairs and make such available to the President and Board of Directors upon
request. The Treasurer may make recommendations to the officers and directors in
regard to the financial affairs of the corporation.
SECTION FIVE: The Vice-President, if one is appointed by the Board of Directors,
shall have such powers as delegated to him by the President. Upon the inability
to perform by the President, the Vice-President shall serve as President until
such time as the President shall be able to perform or further action by the
Board of Directors. The President shall be deemed unable to perform his duties
upon written notification by the President of such inability or resignation to
the Board of Directors that the President is unable to perform.
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until such
time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice-President shall act as
President, the Treasurer shall act as Secretary, and the Secretary shall act as
Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the President. These
duties shall be those delegated to them by the President or the Board of
Directors.
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<PAGE>
SECTION EIGHT: Compensation of the officers shall be determined by the Board of
Directors.
ARTICLE FIVE
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be executed
without approval by the Board of Directors by resolution. Upon such resolution,
the President shall be authorized to execute contracts or instruments of
indebtedness as specified in the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness shall be
executed in the manner as determined by the Board of Directors by resolution.
ARTICLE SIX
CORPORATE SEAL
The seal of the corporation shall be provided by the Board of Directors by
resolution. The seal, shall be used by the President or other officers of the
corporation as provided for in these By-Laws.
ARTICLE SEVEN
AMENDMENT
These By-Laws may be amended from time to time by a majority vote of the
Board of Directors or by a majority vote of the shareholders. These By-Laws may
be repealed and new By-Laws established in the same manner as amendments. These
By-Laws will continue in full force and effect until amended or repealed and
replaced by new By-Laws.
ARTICLE EIGHT
DIVIDENDS
The Board of Directors may from time to time declare dividends to the
shareholders. These distributions may be in cash or property. No such dividends
may be made out of the capital of the corporation.
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<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CONNECTICUT PERFORMING ARTS, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the corporation is:
CONNECTICUT PERFORMING ARTS, INC.
SECOND: The corporation hereby amends its Certificate of
Incorporation so that Article 3 of the Certificate of Incorporation, relating to
the authorized capital stock of the Corporation, is hereby amended to read, in
its entirety, as follows:
The designation of each class of shares, the authorized number of
shares of each such class, and the par value (if any) of each share
thereof, are as follows:
The corporation shall have the authority to issue 300,000
shares, consisting of 5,000 shares of common stock, no par value,
and 295,000 shares of preferred stock, no par value. The board of
directors may authorize the issuance from time to time of the
preferred stock in one or more series and with such designations and
such powers, preferences and rights, and the qualifications,
limitations or restrictions thereof (which may differ with respect
to each series) and such powers as the board may fix by resolution.
THIRD: The written amendment effected herein was authorized by
unanimous resolution of the board of directors and the shareholders of the
corporation pursuant to Section 33-360 of the State of Connecticut Stock
Corporation Act. Pursuant to Section 33-360(c), the affirmative vote of at least
two-thirds of the voting power of the shares entitled to vote was required to be
voted as a class. The unanimous written consent of all of the outstanding shares
of the corporation was obtained pursuant to Section 330 of the State of
Connecticut Stock Corporation Act.
IN WITNESS WHEREOF, we hereunto sign our names, state that we are,
respectively, the president and secretary of the corporation, and affirm that
the statements made in the foregoing statement, this 8th day of April, 1998.
/s/ Robert E. Nederlander, Sr.
------------------------------------
Name: Robert E. Nederlander, Sr.
Title: President
/s/ James H. Koplik
------------------------------------
Name: James H. Koplik
Title: Secretary
<PAGE>
BY-LAWS
of
CG Acquisition Corp.
ARTICLE I
Stockholders
Section 1 Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held annually at such place within or without the State of
Delaware, at such time and on such date, as may from time to time be designated
by the Board of Directors for the election of directors and for the transaction
of any other proper business.
Section 2. Special Meetings. Special meetings of the stockholders of the
Corporation may be called at any time and from time to time by the Chairman or
by a majority of the directors then in office, and shall be called by the
Secretary upon the written request of stockholders holding of record at least a
majority in number of the issued and outstanding shares of the Corporation
entitled to vote at such meeting. Special meetings shall be held at such place
within or without the State of Delaware, at such time and on such date as shall
be specified in the call thereof.
Section 3. Notice of Meetings. Written notice of each meeting of the
stockholders, stating the place, date and hour thereof and, in the case of a
special meeting, the purpose or purposes for which it is called, shall be given,
not less than ten nor more than sixty days before the date of such meeting (or
at such other time as may be required by, statute), to each stockholder entitled
to vote at such meeting. If mailed, such notice is given when deposited in the
United States mail, postage prepaid, directed to each stockholder at his or her
address as it appears on the records of the Corporation.
Section 4. Waiver of Notice. Whenever notice is required to be given of
any annual or special meeting of the stockholders, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
in such notice, shall be deemed equivalent to notice. 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. Attendance of a
person at a meeting of the stockholders 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 because the meeting is not lawfully called or convened.
Section 5. Adjournment. When any meeting of the stockholders is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place to which the meeting is adjourned are announced at the
meeting at which the adjournment is taken. At the adjourned meeting any business
may be transacted which might have been transacted at the original meeting. If
the adjournment is for more than 30 days, or if after such adjournment the Board
of Directors shall fix a new record date for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at such meeting.
Section 6. Quorum. At any meeting of the stockholders the presence, in
person or by proxy, of the holders of a majority of the issued and outstanding
shares of the Corporation entitled to vote at such meeting shall be necessary in
order to constitute a quorum for the transaction of any business. If there shall
not be a quorum at any meeting of the stockholders, the holders of a majority of
the shares entitled to vote present at such meeting, in person or by proxy, may
adjourn such meeting from time to time, without further notice to the
stockholders other than an announcement at such meeting, until holders of the
amount of shares required to constitute a quorum shall be present in person or
by proxy.
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<PAGE>
Section 7. Voting. Each stockholder shall be entitled to one vote for each
share of capital stock held by such stockholder. Voting need not be by ballot,
except that all election of directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. Whenever any corporate
action is to be taken by vote of the stockholders, it shall, except as otherwise
required by law or by the Certificate of Incorporation, be authorized by a
majority of the votes cast at a meeting of stockholders of the holders of shares
entitled to vote thereon, except that all elections shall be decided by a
plurality of the votes cast.
Section 8. Action Without a Meeting. Any action required or permitted to
be taken at any annual or special meeting of stockholders may be taken without a
meeting thereof, without prior notice and without a vote, if a consent 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. Prompt notice of the taking of
such corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 9. Record Date. The Board of Directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days before
the date of any meeting of stockholders, nor more than sixty days prior to any
other action, as the record date for the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action.
Section 10. Proxies. 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 him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
ARTICLE II
Directors
Section 1. Number; Qualifications. The Board of Directors shall consist of
one or more members. The number of directors shall be fixed by the Board of
Directors, but shall not be more than nine or less than three. If at any time
there are less than three stockholders, there may be the same number of
directors as there are stockholders. Directors need not be stockholders of the
Corporation.
Section 2. Term of Office. Each director shall hold office until his or
her successor is elected and qualified or until his or her earlier death,
resignation or removal.
Section 3. Meetings. A meeting of the Board of Directors shall be held for
the election of officers and for the transaction of such other business as may
come before such meeting as soon as practicable after the annual meeting of the
stockholders. Other regular meetings of the Board of Directors may be held at
such times as the Board of Directors of the Corporation may from time to time
determine. Special meetings of the Board of Directors may be called at any time
by the Chairman of the Corporation or by a majority of the directors then in
office. Meetings of the Board of Directors may be held within or without the
State of Delaware.
Section 4. Notice of Meetings; Waiver of Notice; Adjournment. No notice
need be given of the first meeting of the Board of Directors after the annual
meeting of stockholders or of any other regular meeting of the Board of
Directors. Notice of a special meeting of the Board of Directors, specifying the
place, date and hour thereof, shall be delivered personally, mailed or faxed to
each director at his or her address as such address appears on the books of the
Corporation at least two business days (Saturdays, Sundays and legal holidays
not being considered business days
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<PAGE>
for the purpose of these By-Laws) before the date of such meeting. Whenever
notice is required to be given under any provision of the Certificate of
Incorporation or these By-Laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a director at a special 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 because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, the directors or any committee
of directors need be specified in any written waiver of notice unless so
required by the Certificate of Incorporation of these By-Laws. A majority of the
directors present whether or not a quorum is present, may adjourn any meeting to
another time and place. Notice need not be given of the adjourned meeting if the
time and place to which the meeting is adjourned 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 original meeting.
Section 5. Quorum; Voting. A majority of the total number of directors
shall constitute a quorum for the transaction of business. The vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 6. Participation by Telephone. Member of the Board of Directors or
any committee thereof may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation is a meeting by such means shall constitute
presence in person at such meeting.
Section 7. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceeding of the Board of Directors or
of such committee.
Section 8. Committees. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate once or more committees, each committee
to consist of one or more of the directors. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed by the officers on all papers which may
require it, but no such committee shall have the power or authority in reference
to (a) amending the Certificate of Incorporation (except that a committee may,
to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors, fix the
designations and any of the preferences of rights of such shares relating to
dividends, redemption, dissolution, any distribution of the assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation, or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of any
series) and, unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock; (b) adopting an agreement of merger or consolidation; (c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; (d) recommending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution; or (e) amending these By-Laws. The Board of Directors may designate
one or more directors as alternate members of any such committee, who may
replace any absent or disqualified member at any meeting of such committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not constituting a quorum, may unanimously appoint another director to act at
the meeting in the place of such absent or disqualified member.
Section 9. Removal; Resignation. Any director or the entire Board of
Directors may be removed with or without cause, by the holders of a majority of
the shares then entitled to vote at any election of directors. Any director may
resign at any time, upon written notice to the Corporation.
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<PAGE>
Section 10. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of directors then in office, although less than a quorum, or by a sole
remaining director. When one or more directors shall resign from the Board of
Directors, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided above in the filling of other vacancies. A director elected
to fill a vacancy shall hold office for the unexpired term of his or her
predecessor.
Section 11. Compensation. The Board of Directors may fix the compensation
of directors.
ARTICLE III
Officers
Section 1. Election; Qualifications. At the first meeting of the Board of
Directors and as soon as practicable after each annual meeting of stockholders,
the Board of Directors shall elect or appoint a Chairman, President, one or more
Vice-Presidents, a Secretary and a Treasurer, and may elect or appoint at such
time or from time to time such additional officers, with such titles as the
Board of Directors shall designate by resolution, as the Board of Directors
deems advisable. No officer need be a director of the Corporation. Any number of
offices may be held by the same person.
Section 2. Term of Office; Vacancies. Each officer shall hold office until
the election and qualification of his or her successor or until his or her
earlier death, resignation or removal. Any vacancy occurring in any office,
whether because of death, resignation or removal, with or without cause, or
otherwise, shall be filled by the Board of Directors.
Section 3. Removal; Resignation. Any officer may be removed from office at
any time with or without cause by the Board of Directors. Any officer may resign
his or her office at any time upon written notice to the Corporation.
Section 4. Powers and Duties of the Chairman. The Chairman shall be the
chief executive officer of the Corporation and shall have general charge and
supervision of its business, affairs, administration and operations. The
Chairman shall from time to time make such reports concerning the Corporation as
the Board of Directors of the Corporation may require. The Chairman shall
preside at all meetings of the stockholders and the Board of Directors. The
Chairman shall have such other powers and shall perform such other duties as may
from time to time be assigned to him or her by the Board of Directors.
Section 5. Powers and Duties of the President. The President shall have
such powers and perform such duties as may from time to time be assigned to him
or her by the Board of Directors.
Section 6. Powers and Duties of the Vice-Presidents. Each of the
Vice-Presidents shall be given such titles and designations and shall have such
powers and perform such duties as may from time to time be assigned to him or
her by the Board of Directors.
Section 7. Powers and Duties of the Secretary. The Secretary shall record
and keep the minutes of all meetings of the stockholders and of the Board of
Directors in a book to be kept for that purpose. The Secretary shall attend to
the giving and serving of all notices by the Corporation. The Secretary shall be
the custodian of, and shall make or cause to be made the proper entries in, the
minute book of the Corporation and such other books and records as the Board of
Directors may direct. The Secretary shall be the custodian of the corporate seal
of the Corporation and shall affix or cause to be affixed such seal to such
contracts and other instruments as the Board of Directors may direct.
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The Secretary shall have such other powers and shall perform such other duties
as may from time to time be assigned to him or her by the Board of Directors.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall be the
custodian of all funds and securities of the Corporation. Whenever required by
the Board of Directors, the Treasurer shall render a statement of the
Corporation's cash and other accounts, and shall cause to be entered regularly
in the proper books and records of the Corporation to be kept for such purpose
full and accurate accounts of the Corporation's receipts and disbursements. The
Treasurer shall at all reasonable times exhibit the Corporation's books and
accounts to any director of the Corporation upon application at the principal
office of the Corporation during business hours. The Treasurer shall have such
other powers and shall perform such other duties as may from time to time be
assigned to him or her by the Board of Directors.
Section 9. Delegation. In the event of the absence of any officer of the
Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may at any time or from time to time delegate
all or any part of the powers or duties of any officer to any other officer or
officers or to any director or directors.
ARTICLE IV
Stock
The shares of the Corporation shall be represented by certificates signed
by the Chairman or the President or any Vice-President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary. Any of or all the
signatures on the certificate may be a facsimile.
ARTICLE V
Execution of Documents
All contracts, agreements, instruments, bills payable, notes, checks,
drafts, warrants or other obligations of the Corporation shall be made in the
name of the Corporation and shall be signed by such officer or officers as the
Board of Directors may from time to time designate.
ARTICLE VI
Seal
The seal of the Corporation shall contain the name of the Corporation, the
words "Corporate Seal", the year of its organization and the word "Delaware."
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall end on such date of each year as
the Board of Directors may proscribe.
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ARTICLE VIII
Indemnification
The Corporation shall indemnify all persons to the full extent permitted,
and in the manner provided, by the Delaware General Corporation Law, as the same
now exists or may hereafter be amended.
ARTICLE IX
Amendment of By-Laws
These By-Laws may be amended or repealed, and any new By-Law may be
adopted, by the stockholders entitled to vote or by the Board of Directors.
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BY-LAWS
OF
INNOVATIVE TRAINING AND EDUCATION CONCEPTS CORP.
ARTICLE I
OFFICES
The principal office of the Corporation is in St. Louis,
Missouri. The Corporation may have such other offices, either within or without
the State of Missouri, as the Board of Directors may designate or as the
business of the Corporation may require from time to time.
ARTICLE II
SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the
Shareholders shall be held on the second Thursday in the month of July in each
year, beginning with the year 1995, at the hour of 2:00 p.m., for the purpose
of electing Directors and for the transaction of such other business as may
come before the meeting. If the day fixed for the annual meeting shall be a
legal holiday in the State of Missouri, such meeting shall be held on the next
succeeding business day. If the election of Directors shall not be held on the
day designated herein for any annual meeting of the Shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
on a specified date not longer than ninety (90) days from the date of
adjournment.
SECTION 2. Special Meetings. Special meetings of the
Shareholders, for any purpose or purposes, unless otherwise prescribed by
statute, may be called by the President or by the Board of Directors, or shall
be called by the President at the request of the holders of not less than
fifty-one percent (51%) of all the outstanding shares of the Corporation
entitled to vote at the meeting.
SECTION 3. Place of Meeting. All meetings of the Shareholders
shall be at the office of the Corporation or at such other place within or
without the State of Missouri as may be designated by the President or the
Board of Directors. The Board of Directors may designate any place, either
within or without the State of Missouri unless otherwise prescribed by statute,
as the place of meeting for any annual meeting or for any special meeting
called
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by the Board of Directors. A waiver of notice signed by the majority of
Shareholders entitled to vote at a meeting may designate any place, either
within or without the State of Missouri.
SECTION 4. Notice of Meeting. Unless otherwise prescribed by
statute, written notice stating the place, day and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall, unless otherwise prescribed by statute, be delivered not less
than ten (10) days nor more than fifty (50) days before the date of the
meeting, either personally or by mail, by or at the direction of the President,
or the Secretary, or the officers or persons calling the meeting to each
Shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the Shareholder at the address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.
SECTION 5. Closing of Transfer Books or Fixing Record Date.
For the purposes of determining Shareholders entitled to notice of or to vote
at any meeting of Shareholders or any adjournment thereof, or Shareholders
entitled to receive payment of any dividend, or in order to make a
determination of Shareholders for any other proper purpose, the Board of
Directors of the Corporation shall have the power to close the transfer books
of the Corporation for a period not exceeding fifty (50) days of any meeting of
the Shareholders or the date of payment of any dividend or the date from
allotment of rights or the date when any change or conversion or exchange of
shares shall go into effect. If the stock transfer books are closed for the
purpose of determining Shareholders entitled to notice of or to vote at a
meeting of Shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of Shareholders, such date in any case to be not more
than fifty (50) days and, in case of a meeting of Shareholders, not less than
ten (10) days, prior to the date on which the particular action requiring such
determination of Shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for either the determination of
Shareholders entitled to notice of or to vote at a meeting of Shareholders, or
for the determination of Shareholders entitled to receive payment of a
dividend, only the Shareholders who are Shareholders of record at the close of
business on the twentieth (20th) day preceding the date of the meeting shall be
entitled to notice of and to vote
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at the meeting. When a determination of Shareholders entitled to vote at any
meeting of Shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof.
SECTION 6. Voting Lists. The officer having charge of the
stock transfer books for shares of the Corporation shall make, at least ten
(10) days prior to each meeting of the Shareholders, a complete list of the
Shareholders entitled to vote at each meeting of Shareholders or any
adjournment thereof. Said list shall be arranged in alphabetical order, stating
the address of and the number of shares held by each Shareholder. Such list,
for a period of ten (10) days prior to such meeting, shall be produced and kept
on file at the registered office of the Corporation and shall be subject to the
inspections of any Shareholder during the whole time of the meeting for the
purposes thereof.
SECTION 7. Quorum. A majority of the outstanding shares of
the Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of Shareholders. If less than a quorum of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The Shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum.
SECTION 8. Proxies. At all meetings of Shareholders, a
Shareholder may vote in person or by proxy executed in writing by a Shareholder
or by the Shareholder's duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy.
SECTION 9. Voting of Shares. Subject to the provisions of
Section 12 of this Article II, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
Shareholders.
SECTION 10. Voting of Shares by Certain Holders. Shares
standing in the name of another corporation, foreign or domestic, may be voted
by such officer, agent or proxy as the by-laws of that corporation may
prescribe, or, in the absence of such provision, as the board of directors of
that corporation may determine.
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Shares held by an administrator, executor, guardian or
conservator may be voted by such person, either in person or by proxy, without
a transfer of such shares into such person's name. Shares standing in the name
of a trustee may be voted by such trustee, either in person or by proxy, but no
trustee shall be entitled to vote shares held by such trustee without a
transfer of such shares into such trustee's name.
Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into such receiver's name
if authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
A Shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
Shares of its own stock belonging to the Corporation shall
not be voted, directly or indirectly, at any meeting, and shall not be counted
in determining the total number of outstanding shares at any given time.
SECTION 11. Informal Action by Shareholders. Unless otherwise
provided by law, any action required to be taken at a meeting of the
Shareholders, or any other action which may be taken at a meeting of the
Shareholders, may be taken without holding a meeting if a consent in writing,
setting forth the action so taken, shall be signed by no less than a majority
of all of the Shareholders entitled to vote with respect to the subject matter
thereof.
SECTION 12. Cumulative Voting. Unless otherwise provided by
law, at each election for Directors, every Shareholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by such Shareholder for as many persons as there are Directors to
be elected and for whose election he or she has a right to vote, or to cumulate
his or her votes by giving one candidate as many votes as the number of such
Directors multiplied by the number of his or her shares shall equal, or by
distributing such votes on the same principal among any number of candidates.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors.
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SECTION 2. Tenure. Each Director shall hold office until the
next annual meeting of Shareholders or until his or her successor shall have
been elected and qualified.
SECTION 3. Place of Meeting. Regular and specific meetings of
the Board of Directors of the Corporation, or of any committee designated by
the Board of Directors, both regular and special, may be held at any place
either within or without the State of Missouri, and unless otherwise designated
as herein provided, shall be held at the office of the Corporation.
SECTION 4. First Meeting of Initial Board. The first meeting
of each newly named Board of Directors for the purposes of electing officers
and transacting such other business as may come before the meeting shall be
held as soon as conveniently possible upon the issuance of the Corporation's
Certificate of Incorporation. No notice of such organizational meeting of
Directors need be given, provided that a quorum shall be present. If, for any
reason, such meeting of the Directors is not or cannot be held as herein
prescribed, the officers may be elected at any meeting of the Directors
thereafter called for such purpose pursuant to these By-Laws.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place as shall from time to time be
determined by resolution of the Board.
SECTION 6. Annual Meetings. Annual meetings of the Board of
Directors shall be held immediately after the final adjournment of the annual
meeting of the Shareholders.
SECTION 7. Notice of Regular Meetings. After the time and
place of regular meetings has been determined by a majority of Directors, no
notice of any other regular meetings need be given. Notice of any change in the
time or place of holding any regular meeting or any adjournment of a regular
meeting shall be given by mail or telegram not less than forty-eight (48) hours
before such meeting, to all Directors who were absent at the time such action
was taken.
SECTION 8. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or two (2)
Directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the time and place for holding any special meeting
of the Board of Directors provided that no
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special meeting be held outside the County and/or City of the principal place
of business without the consent of all the members of the Board of Directors.
SECTION 9. Notice. Notice of any special meeting for any
purpose or purposes may be given by the President on five (5) days notice
delivered personally or mailed to each Director at his or her business address,
or by telegram. If mailed, such notice shall be deemed to be delivered when
deposited in the United States Mail so addressed, with postage thereon prepaid.
If notice be given by telegram, such notice shall be deemed to be delivered
when the telegram is delivered to the telegraph company. Any Director may waive
notice of any meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director attends
a meeting for the express purpose of objecting to the transaction of any
business threat because the meeting has not been lawfully called or convened.
SECTION 10. Quorum. A majority of the Directors of the
Corporation shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than such majority is present at
a meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice.
SECTION 11. Manner of Acting. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 12. Action Without a Meeting. Any action that may be
taken by the Board of Directors or any committee of the Board of Directors at a
meeting may be taken without a meeting if a consent in writing, setting forth
the action so to be taken, is signed by all of the members of the Board of
Directors or the committee, as the case may be. The Secretary shall file the
consents with the minutes of the meeting of the Board of Directors or of the
Committee, as the case may be.
SECTION 13. Vacancies. In case of death, resignation or
disqualification of one or more of the Directors, a majority of the remaining
Directors shall elect replacement Director(s) to fill such vacancy or
vacancies, who shall serve until the duly qualified successor(s) is (are)
elected at the next annual meeting of the Shareholders. A Director elected to
fill a vacancy shall serve until the next annual Shareholders' meeting.
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SECTION 14. Removal. At a meeting called expressly for the
purpose of removal, one or more of the Directors or the entire Board of
Directors may be removed, with or without cause, by a vote of the holders of a
majority of the shares entitled to vote at a meeting of the Shareholders. If
less than the entire Board of Directors is to be removed, no one of the
Directors may be removed if the votes cast opposed to such Director's removal
would be sufficient to elect him or her if such votes were then cumulatively
voted at an election of the entire Board of Directors. Such meeting shall be
held at the registered office or principal business office of the Corporation.
SECTION 15. Compensation. By resolution of the Board of
Directors, each Director may be paid his or her expenses, if any, for
attendance at each meeting of the Board of Directors, and may be paid a stated
salary as Director or a fixed sum for attendance at each meeting of the Board
of Directors or both. No such payment shall preclude any Director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 16. Presumption of Assent. A Director of the
Corporation who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless such Director's dissent shall be entered in the minutes
of the meeting or unless such Director shall file a written dissent to such
action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favor of such
action.
SECTION 17. Committees of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one (1)
or more committees, each committee to consist of two (2) or more of the
Directors of the Corporation, which, to the extent provided in the resolution,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
SECTION 18. Organization. The President, and in his or her
absence the Vice President, and in the absence of the President and all the
Vice Presidents, a Chairman pro tem, chosen by the Directors present, shall
preside
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at each meeting of the Directors and shall act as Chairman thereof. The
Secretary, and in his or her absence the Assistant Secretary, and in the
absence of the Secretary and the Assistant Secretary, a Secretary pro tem,
chosen by the Directors present shall act as Secretary of all meetings of the
Directors.
SECTION 19. Minutes and Statements. The Board of Directors
shall cause to be kept a complete record of its meetings and acts.
ARTICLE IV
OFFICERS
SECTION 1. Number. The officers of the Corporation shall be a
President, a Vice President, a Treasurer and a Secretary, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers
as may be deemed necessary may be elected or appointed by the Board of
Directors.
SECTION 2. Election and Term of Office. The officers of the
Corporation shall be elected by the Board of Directors at the Board's first
initial meeting and shall be elected thereafter by the Board of Directors at
the Board's annual meeting. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently
may be held. Each officer shall hold office until such officer's successor
shall have been duly elected and shall have qualified or until such officer's
death or resignation or until removal in the manner hereinafter provided.
SECTION 3. Removal. Any officer or agent appointed by the
Board of Directors may be removed by the Board of Directors whenever, in its
judgment, the best interests of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
persons so removed. Election or appointment of an officer or agent shall not of
itself create contract rights.
SECTION 4. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by
the Board of Directors for the unexpired portion of the term.
SECTION 5. President. The President shall be the principal
executive officer of the Corporation and, subject to the control of the Board
of Directors, shall in general supervise and control all of the business and
affairs of the Corporation.
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SECTION 6. Vice President. In the absence of the President or
in the event of his or her death, inability or refusal to act, the Vice
President shall perform the duties of the President, when so acting, shall have
the powers of and be subject to all the restrictions upon the President. The
Vice President shall perform such other duties as from time to time may be
assigned to him or her by the President or by the Board of Directors.
SECTION 7. Secretary. The Secretary shall: (a) keep the
minutes of the proceedings of the Shareholders and of the Board of Directors in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these By-Laws or as required by law;
(c) be custodian of the corporate records and of the seal of the Corporation
and see that the seal of the Corporation is affixed to all documents the
execution of which on behalf of the Corporation under its seal is duly
authorized; (d) keep a register of the post office address of each Shareholder
which shall be furnished to the Secretary of State by such Shareholder; (e)
sign with the President certificates for shares of the Corporation, the
Assurance of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
Corporation; and (g) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him or
her by the President or by the Board of Directors.
SECTION 8. The Assistant Secretary. Each Assistant Secretary
shall assist the Secretary in the performance of his or her duties, and may at
any time perform any of the duties of the Secretary; in case of the death,
resignation, absence or disability of the Secretary, the duties of the
Secretary shall be performed by an Assistant Secretary, and each Assistant
Secretary shall have such other powers and perform such other duties as, from
time to time, may be assigned to him or her by the Board of Directors.
SECTION 9. Treasurer. The Treasurer shall: (a) have custody
of and be responsible for all funds and securities of the Corporation; (b) keep
full and accurate accounts of receipts and disbursements in the corporate
books, and deposit all such monies and other valuables in the name of and to
the credit of the Corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of Article
VI of these By-Laws; and (c) in general perform all of the duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him by the President or by the Board of Directors. If required by
the Board of Directors, the
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Treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors shall
determine.
SECTION 10. The Assistant Treasurer. Each Assistant Treasurer
shall assist the Treasurer in the performance of his or her duties, and may at
any time perform any of the duties of the Treasurer; in case of the death,
resignation, absence or disability of the Treasurer, the duties of the
Treasurer shall be performed by an Assistant Treasurer, and each Assistant
Treasurer shall have such other powers and perform such other duties as, from
time to time, may be assigned to him or her by the Board of Directors.
SECTION 11. Salaries. The salaries of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that such officer is
also a Director of the Corporation.
ARTICLE V
RESIGNATIONS
Any Director or officer may resign his or her office at any
time, such resignation to be made in writing and to take effect from the time
of its receipt by the Corporation, unless some time be fixed in the
resignation, and then from that time. The acceptance of a resignation shall not
be required to make it effective.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation, and
such authority may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of
the Corporation, and no evidences of indebtedness shall be issued in its name,
unless authorized by a resolution of the Board of Directors. Such authority may
be general or confined to specific instances.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers,
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agent or agents of the Corporation and in such manner as shall from time to
time be determined by resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the Board
of Directors may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Certificates representing
shares of the Corporation shall be in such form as shall be determined by the
Board of Directors. Such certificates shall be signed by the President and by
the Secretary or by such other officers as authorized by law and by the Board
of Directors and sealed with the corporate seal. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and address
of the person to whom the shares represented thereby are issued, with the
number of shares and date of issue, shall be entered on the stock transfer
books of the Corporation. All certificates surrendered to the Corporation for
transfer shall be canceled, and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
canceled, except that in case of a lost, destroyed or mutilated certificate, a
new one may be issued therefor upon such terms and indemnity to the Corporation
as the By-Laws may prescribe.
SECTION 2. Restrictions on Transfer of Shares. Shares in the
Corporation cannot be transferred unless in full compliance with all federal
and state securities laws or an applicable exemption thereto. In addition, a
Shareholder cannot transfer such Shareholder's shares in the Corporation (or
any interest therein) voluntarily or involuntarily except as set forth in this
ARTICLE VII, Section 2. Any transfer of a Shareholder's shares not in
compliance with this ARTICLE VII, Section 2 shall be null and void.
Notwithstanding the foregoing, the following transfers may be made without
invoking the Corporation's Right of First Refusal provided that such transferee
takes such shares subject to the provisions of this ARTICLE VII, Section 2 with
respect to any subsequent transfer:
(a) any transfer by a Shareholder who is an individual to a
revocable living trust of which the Shareholder, either individually or with
the Shareholder's spouse, is the grantor and initial beneficiary;
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(b) any transfer to the Shareholder's spouse,
children, parents, or other lineal ancestors or lineal descendants; or
(c) any transfer due to the death of the Shareholder.
SECTION 3. Registered Shareholders. The Corporation shall be
entitled to treat the registered holder of any share or shares of stock whose
name appears on its books as the owner or holder thereof as the absolute owner
of all legal and equitable interests therein for all purposes and (except as
may be otherwise provided by law) shall not be bound to recognize any equitable
or other claim to or interest in such shares of stock on the part of any other
person, regardless of whether or not it shall have actual or implied notice of
such claim or interest.
SECTION 4. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost or destroyed, upon the making of an affidavit of the fact by the
person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates or such owner's legal representative, to advertise the same in
such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost or
destroyed.
ARTICLE VIII
CORPORATE SEAL
The Board of Directors may provide a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
Corporation, the State of incorporation and the words "Corporate Seal."
ARTICLE IX
WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is
required to be given to any Shareholder or Director of the Corporation under
the provisions of these By-Laws or under the provisions of the Articles of
Incorporation or under the provisions of the Business Corporation Act, a waiver
thereof in writing, signed by the person
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or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
SECTION 2. Inspection of Books. The Directors shall determine
from time to time whether, and if allowed, when and under what conditions and
regulations the accounts and books of the Corporation (except such as may by
statute be specifically open to inspection) or any of them shall be open to
inspection of the Shareholders, and Shareholders' rights in this respect are
and shall be restricted and limited accordingly.
SECTION 3. Checks and Notes. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers agent or agents as shall be
thereunto duly authorized from time to time by the Board of Directors;
provided, that checks drawn on the Corporation's payroll, dividend and special
accounts may bear the facsimile signatures, affixed thereto by a mechanical
device, of such officers or agents as the Board of Directors may authorize.
SECTION 4. Dividends. The Board of Directors shall declare
such dividends as the Directors in their discretion see fit whenever the
condition of the Corporation, in their opinion, shall warrant the same subject
to the limitations of R.S.Mo. Section 351.220. The Board may declare dividends
in cash, in property or in capital stock.
SECTION 5. Indemnification. Each Director, Officer, employee
or agent, or former Director, Officer, employee or agent of this Corporation
and his or her legal representatives, shall be indemnified by the Corporation
against liabilities, fines, judgments, expenses, counsel fees and costs
reasonably incurred by such Director, Officer, employee or agent or his or her
estate in connection with, or arising out of, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, or other enterprise in which he or she is made
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<PAGE>
a party by reason of his or her being or having been such Director, Officer,
employee or agent; and any person who, at the request of this Corporation,
served as Director, Officer, employee or agent of another corporation,
partnership, joint venture, trust or enterprise, in which this Corporation
owned corporate stock, and his or her legal representative shall in like manner
be indemnified by this Corporation; provided, that in all cases, in respect to
the original Board of Directors, indemnification shall be made, to the maximum
extent permitted under R.S.Mo. Section 351.355; and in respect to subsequently
named Directors, and all officers, employees or agents, unless and only to the
extent that the court in which the action or suit was brought determines upon
application that, despite the adjudication of liability and in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper, no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duties to the Corporation. The
indemnification herein provided shall apply also to any amount paid in
compromise or settlement of any such action, suit or proceeding or claim
asserted against any such Director, officer, employee or agent (including
expenses, counsel fees and costs reasonably incurred in connection therewith),
provided the Board of Directors shall have first approved such proposed
compromise settlement; but, in taking such action, any Director involved shall
not be qualified to vote thereon, and if for this reason a quorum of the Board
cannot be obtained to vote on such matters, it shall be determined by a
Committee of two (2) or more persons appointed by the Shareholders at a duly
called special meeting or a regular meeting. In determining whether a Director
named subsequent to the naming of the original Board of Directors, or any
officer, employee or agent was guilty of negligence or misconduct in relation
to any such matter, the Board of Directors or Committee, as the case may be,
may rely conclusively upon an opinion of independent counsel selected by such
Board or Committee.
ARTICLE XI
AMENDMENTS
Except as set forth below, these By-Laws may be altered,
amended or repealed, and new By-Laws may be adopted by vote of a majority of
the Directors, as specified in the Articles of Incorporation, at any regular or
special meeting of the Directors. Notwithstanding the foregoing, however, no
alteration, amendment or repeal may be
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<PAGE>
proposed or adopted regarding ARTICLE II, Section 12, ARTICLE III, Section 14,
or ARTICLE VII, Section 2, of these By-Laws except by the Shareholders of the
Corporation; and ARTICLE II, Section 12, ARTICLE III, Section 14, and/or
ARTICLE VII, Section 2 shall not be altered, amended or repealed if the votes
cast in opposition thereto would be sufficient to elect a Director to the Board
of Directors if such votes were cumulatively voted for a Director at an
election of the entire Board of Directors.
Adopted effective as of November 4 1994.
/s/ Illegible
-------------------------------------
, President
--------------------------
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<PAGE>
ARTICLES OF INCORPORATION
OF
FESTIVAL PRODUCTIONS, INC.
The undersigned natural person of the age of eighteen (18)
years or more, acting as Incorporator of a corporation (hereinafter referred to
as the "Corporation"), under the Texas Business Corporation Act (hereinafter
referred to as the "Act"), does hereby adopt the following Articles of
Incorporation of the Corporation:
I. NAME
The name of the Corporation is FESTIVAL PRODUCTIONS, INC.
II. DURATION
The period of the Corporation's duration is perpetual.
III. PURPOSES AND POWERS
Section 1. Purposes: The purposes for which the Corporation
is organized are:
(a) To acquire, establish, own, hold, sell, lease,
conduct, manage, promote, produce and present fairs,
festivals, concerts, expositions, shows, carnivals,
exhibitions, contests, theatrical productions or
amusement enterprises of every kind and nature.
(b) To engage in the business of leasing, renting,
transporting, buying, selling, trading, exchanging,
manufacturing, dealing in and dealing with equipment
goods, wares, merchandise and personal property of
every kind and character and to carry on such
business as lessors, wholesalers, retailers,
importers and exporters, or any one or more of them.
(c) To the extent that corporations may legally do so,
to engage in the business of the erection,
construction or repair of residences, buildings,
structures or improvements, public or private, and
to contract for the erection, construction or repair
of the same or any part thereof, and to acquire,
own, prepare and use any materials for said purpose.
(d) To engage in the manufacturing business.
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<PAGE>
(e) To establish, maintain and conduct any sales,
service, agency, brokerage, franchise, investment or
merchandising business in all its aspects for the
purpose of selling, purchasing, licensing, renting,
leasing, operating, franchising and otherwise
dealing with personal services, instruments,
machines, appliances, inventions, securities, trade
marks, trade names, patents, privileges, processes
improvements, copyrights, contract rights and
personal property, tangible and intangible, of all
kinds and descriptions.
(f) To serve as manager, consultant, representative,
agent, broker or advisor for other persons,
associations, corporations, partnerships and firms.
(g) To enter into partnerships or into any arrangement
for sharing of profits, union of interests,
cooperation, joint venture, reciprocal concession or
otherwise, with any person, firm or corporation
carrying on or engaged in or about to carry on or
engage in any business or transaction which the
corporation is authorized to carry on or engage in.
(h) To carry out the purposes above set forth in any
state, territory, district or possession of the
United States, or in any foreign country to the
extent that such purposes are not forbidden by the
law of such state, territory, district or possession
of the United States or by such foreign country.
(i) Subject to the provisions of Part Four, Chapter 203,
of the Texas Miscellaneous Corporation Laws Act
(Articles 4.01-4.07), to carry on the business of
purchasing, subdividing, selling, mortgaging,
improving, owning, leasing, renting or otherwise
holding, owning, managing, operating, exchanging and
selling land and real property of every kind and
character, including any interest therein.
(j) In general, to transact any or all lawful business
for which corporations may be incorporated under the
Texas Business Corporation Act.
Section 2. Powers: Subject to any limitation or restrictions
imposed by the Texas Business Corporation Act or any other law, or by these
Articles of Incorporation, and solely in furtherance of, but not in addition
to, the purposes set forth in Section 1 of this Article, the Corporation shall
have and exercise all of the powers specified in the Texas Business Corporation
Act or in any other applicable law of the State of Texas.
Section 3. Limiting Clauses: Nothing in this Article shall be
construed as authorizing the Corporation to transact any business in the State
of Texas prohibited by any law of the State of Texas, or to engage in any
activity in the State of Texas which lawfully cannot be engaged in without
first obtaining a license under the laws of Texas and such license cannot be
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<PAGE>
granted to a corporation, or to transact any of the business referred to in
Section (B) (3) (a) or Section (B) (4) of Article 2.01 of the Texas Business
Corporation Act.
IV. AUTHORIZED SHARES
The aggregate number of shares which the Corporation shall
have authority to issue is one million (1,000,000) shares of common stock of
the par value of One Dollar ($1.00) per share.
V. INITIAL CONSIDERATION OF ISSUANCE OF SHARES
The Corporation will not commence business until it has
received for the issuance of its shares consideration of the value of not less
than One Thousand Dollars ($1,000.00), consisting of money paid, labor done, or
property actually received.
VI. REGISTERED OFFICE AND AGENT
The Post Office address of the initial Registered office of
the Corporation is 20th Floor, Niels Esperson Building, Houston, Texas 77002,
and the name of its initial Registered Agent at such address is Ronald J.
Stark.
VII. DIRECTORS
The number of Directors of the Corporation shall be fixed by
the By-Laws of the Corporation, but such number shall not be less than one (1),
and the names and addresses of the persons who are to serve as Directors of the
Corporation until the first annual meeting of the shareholders or until their
successors are elected and qualified are:
NAME ADDRESS
Allen J. Becker 3003 W. Alabama
Houston, Texas 77098
Barry M. Lewis 3003 W. Alabama
Houston, Texas 77098
Louis Messina 3003 W. Alabama
Houston, Texas 77098
VIII. INCORPORATOR
The name and address of the Incorporator is Ronald J. Stark,
20th Floor, Niels Esperson Building, Houston, Texas 77002.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this the 26th day of May, 1978.
/s/ Ronald J. Stark
Ronald J. Stark
THE STATE OF TEXAS :
:
COUNTY OF HARRIS :
I, the undersigned, a Notary Public, do hereby certify that
on this the 26th day of May, 1978, personally appeared before me Ronald J.
Stark, who being by me first duly sworn, declared that he is the person who
signed the foregoing document as Incorporator, and that the statements therein
contained are true.
/s/ Ruth Batchelder
Notary Public in and FOR
Harris County, Texas
My Commission Expires:
June 30, 1978
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<PAGE>
BYLAWS
OF
PACE CONCERTS, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located in
Harris County, Texas.
Section 2. The corporation may also have offices at such other places both
within or without the State of Texas as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of directors
shall be held at such time and place, within or without the State of Texas, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with or
without cause at any meeting of shareholders by majority vote of the shares then
entitled to vote, provided that notice of the proposed action is given in the
notice or waiver of notice of such meeting. Election of Directors shall be by
plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may be
held within or without the State of Texas. The annual meeting of the Board of
Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors and
shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
<PAGE>
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be issued
for lawful consideration (not less than par value) and to such persons as the
Board of Directors may determine from time to time. In the absence of fraud, the
judgment of the Board of Directors as to the value received for shares issued
shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article 2.02-1
of the Texas Business Corporation Act, any person who is or was a director,
officer, agent or employee of the corporation.
APPROVED by the initial directors this 6th day of March, 1987.
ATTEST:
/s/ John A. Rubey
- -----------------------------
John A. Rubey, Secretary
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<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
PACE ENTERTAINMENT CORPORATION
ARTICLE I. PACE Entertainment Corporation, pursuant to the
provisions of Article 4.07 of the Texas Business Corporation Act, hereby
adopts Restated Articles of Incorporation which accurately copy the
corporation's Articles of Incorporation and all amendments thereto that are in
effect to date and as further amended by such Restated Articles of
Incorporation as hereinafter set forth and which contain no other change in
any other provision thereof.
ARTICLE II. Articles I, II, III, IV, V, VI, VII, and VIII of
the Articles of Incorporation of the Corporation are hereby amended and new
Articles IX, X and XI are hereby added to the Restated Articles of
Incorporation so that such articles, as amended or added, shall read in their
entirety as follows:
"ARTICLE I.
The name of the corporation is PACE Entertainment
Corporation.
ARTICLE II.
The period of the corporation's duration is perpetual.
ARTICLE III.
The purpose for which the corporation is organized is the
transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE IV.
The aggregate number of shares which the corporation shall
have authority to issue, and which shall comprise its total capitalization, is
five hundred thousand (500,000) shares of common stock having a par value of
$1.00 per share.
ARTICLE V.
The corporation will not commence business until it has
received for the issuance of its shares consideration of the value of at least
ONE THOUSAND AND N0/100 DOLLARS ($1,000.00), consisting of money, labor done
or property actually received.
ARTICLE VI.
The street address of the registered office of the
corporation is 515 Post Oak Boulevard, Suite 300, Houston, Texas 77027, and
the name of its registered agent at such address is Jeffry B. Lewis.
ARTICLE VII.
The number of directors shall be fixed in the manner
provided in the bylaws of the corporation. The name and address of the person
who is to serve as director until his successor is elected and qualifies, is:
Allen J. Becker 515 Post Oak Blvd.
Suite 300
Houston, Texas 77027
<PAGE>
ARTICLE VIII.
To the fullest extent permitted by applicable law, including
to the fullest extent permitted by Article 1302-7.06 of the Texas
Miscellaneous Corporation Laws Act, any successor to or modification of such
article, or any other applicable statute or judicial or administrative
decision, no director of the corporation shall be liable to the corporation or
any of its shareholders for monetary damages for an act or omission in the
director's capacity as a director. To the fullest extent permitted by
applicalbie law, including to m`e fullest extent permitted by Article 2.02-1
of the Texas Business Corporation Act, any successor to or modification of
such article, or any other applicable statute or judicial or administrative
decision, the corporation shall indemnify, reimburse and advance expenses
prior to the final disposition of the proceeding to, each director, former
director or officer of the Corporation who was, is or is threatened to be made
a defendant or respondent in any proceeding, and shall indemnify, reimburse
and advance expenses prior to the final disposition of the proceeding to, each
director, former director, officer, employee, agent, or person who is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, who was, is
or is threatened to be made a defendant or respondent in any proceeding. Any
repeal or amendment of this Article shall be prospective only, and shall not
adversely affect any right of any person existing at the time of such repeal
or amendment.
ARTICLE IX.
The right of cumulative voting of shares is hereby expressly
prohibited.
ARTICLE X.
No shareholder of the corporation shall have any preemptive
right to acquire additional, unissued or treasury shares of the corporation,
or securities of the corporation convertible into or carrying a right, option
or warrant to subscribe to or acquire shares, whether now or hereafter
authorized, which may at any time be issued, sold or offered for sale by the
corporation.
ARTICLE XI.
Any action required to be taken at any annual or special
meeting of shareholders, or any action which may be taken at any annual or
special meeting of shareholders, may be taken. without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting
forth the actions so taken, shall be signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to
take such action at a meeting at which the holders of all shares entitled to
vote on the action were present and voted."
ARTICLE III. Each such amendment and addition made by these
Restated Articles of Incorporation has been effected in conformity with the
provisions of the Texas Business Corporation Act, and such Restated Articles
of Incorporation and each such amendment and addition made by the Restated
Articles of Incorporation were duly adopted by the Shareholders of the
corporation effective April 13, 1993.
ARTICLE VI. The number of shares outstanding was 1,870
shares of common stock, and the number of shares entitled to vote on the
Restated Articles of Incorporation as so amended was 1,870 shares of common
stock the holders of all of which have signed a written consent to the
adoption of such Restated Articles of Incorporation as so amended.
ARTICLE V. The Articles of Incorporation and all amendments
and supplements thereto are hereby superseded by the following Restated
Articles of Incorporation which accurately copy the entire text thereof and as
amended as set forth above:
"ARTICLE I.
The name of the corporation is PACE Entertainment
Corporation.
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<PAGE>
ARTICLE II.
The period of the corporation's duration is perpetual.
ARTICLE III.
The purpose for which the corporation is organized is the
transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE IV.
The aggregate number of shares which the corporation shall
have authority to issue, and which shall comprise its total capitalization, is
five hundred thousand (500,000) shares of common stock having a par value of
$1.00 per share.
ARTICLE V.
The corporation will not commence business until it has
received for the issuance of its shares consideration of the value of at least
ONE THOUSAND AND N0/100 DOLLARS ($1,000.00), consisting of money, labor done
or property actually received.
ARTICLE VI.
The street address of the registered office of the
corporation is 515 Post Oak Boulevard, Suite 300, Houston, Texas 77027, and
the name of its initial registered agent at such address is Jeffry B. Lewis.
ARTICLE VII.
The number of directors shall be fixed in the manner
provided in the bylaws of the corporation. The name and address of the person
who is to serve as director until his successor is elected and qualifies, is:
Allen J. Becker 515 Post Oak Blvd.
Suite 300
Houston, Texas 77027
ARTICLE VIII.
To the fullest extent permitted by applicable law, including
to the fullest extent permitted by Article 1302-7.06 of the Texas
Miscellaneous Corporation Laws Act, any successor to or modification of such
article, or any other applicable statute or judicial or administrative
decision, no director of the corporation shall be liable to the corporation or
any of its shareholders for monetary damages for an act or omission in the
director's capacity as a director. To the fullest extent permitted by
applicable law, including to the fullest extent permitted by Article 2.02-1 of
the Texas Business Corporation Act, any successor to or modification of such
article, or any other applicable statute or judicial or administrative
decision, the corporation shall indemnify, reimburse and advance expenses
prior to the final disposition of the proceeding to; each director, former
director or officer of the Corporation who was, is or is threatened to be made
a defendant or respondent in any proceeding, and shall indemnify, reimburse
and advance expenses prior to the final disposition of the proceeding to, each
director, former director, officer, employee, agent, or person who is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, who was, is
or is threatened to be made a defendant or respondent in any proceeding. Any
repeal or amendment of this Article shall be prospective only, and shall not
adversely affect any right of any person existing at the time of such repeal
or amendment.
ARTICLE IX.
The right of cumulative voting of shares is hereby expressly
prohibited.
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<PAGE>
ARTICLE X.
No shareholder of the corporation shall have any preemptive
right to acquire additional, unissued or treasury shares of the corporation,
or securities of the corporation convertible into or carrying a right, option
or warrant to subscribe to or acquire shares, whether now or hereafter
authorized which may at any time be issued, sold or offered for sale by the
corporation.
ARTICLE XI.
Any action required to be taken at any annual or special
meeting of shareholders, or any action which may be taken at any annual or
special meeting of shareholders, may be taken without a meeting, without prior
notice and without a vote if a consent or consents in writing, setting forth
the actions so taken, shall be signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to
take such action at a meeting at which the holders of all shares entitled to
vote on the action were present and voted."
Dated effective as of April 13, 1993.
PACE ENTERTAINMENT CORPORATION
By: /s/ Miles C. Wilkin
---------------------------
Name: Miles C. Wilkin
Title: President
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<PAGE>
February 16, 1998
REVISED AND RESTATED
BYLAWS
OF
PACE ENTERTAINMENT CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. Until the Board of Directors otherwise
determines, the registered office of the Corporation required by the Texas
Business Corporation Act to be maintained in the State of Texas shall be at the
address set forth in the Articles of Incorporation of the Corporation, but such
registered office may be changed from time to time by the Board of Directors in
the manner provided by law and need not be identical to the principal place of
business of the Corporation.
Section 2. Other Offices. The Corporation may also have offices at
such other places or locations, within or without the State of Texas, as the
Board of Directors may, by resolution, from time to time determine or the
business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders
shall be held at 10:00 a.m. on the first Tuesday in December, if not a legal
holiday, and if a legal holiday, then on the next succeeding business day, or
on such other date and time as the Board of Directors shall fix and set forth
in the notice of the meeting, for the purpose of electing directors to succeed
those whose terms expire and for the transaction of any and all such other
business as may properly be brought before or submitted to this meeting. Any
and all business of any nature or character whatsoever may be transacted, and
action may be taken thereon, at any annual meeting, except as otherwise
provided by law or by these Bylaws.
<PAGE>
Each annual meeting of the shareholders shall be held at the
registered office of the Corporation, or at such other place within or without
the State of Texas as may be determined by the Board of Directors and set forth
in the notice of the meeting. However, any annual meeting may be held at any
place within or without the State of Texas designated in a waiver or waivers of
notice signed by all of the shareholders.
Section 2. Special Meetings. Each special meeting of the shareholders
shall be held at the registered office of the Corporation, or at such other
place within or without the State of Texas as may be determined by the Board of
Directors and set forth in the notice of the meeting. However, any special
meeting may be held at any place within or without the State of Texas
designated in a waiver or waivers of notice signed by all of the shareholders.
Special meetings of the shareholders for any purpose or purposes,
unless otherwise prescribed by statute, or by the Articles of Incorporation of
the Corporation, may be called at any time by the President, by directors
constituting fifty percent (50%) or more of the Board of Directors, or by the
then holders of at least ten percent (10%) of the then issued and outstanding
shares of any class of the capital stock of the Corporation entitled to be
voted at such meeting, or of any class if there be more than one (1) class of
such stock entitled to vote on any matter to be submitted to the particular
meeting. Any notice calling a special meeting shall state the purpose or
purposes of the proposed meeting.
Section 3. Record Dates and Closing of Transfer Books. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or entitled to consent to any
corporate action in writing without a meeting, or entitled to receive payment
of any dividend, or in order to make a determination of shareholders for any
other proper purpose, the Board of Directors of the Corporation may provide, in
advance, that the stock transfer books shall be closed for a stated period but
not to exceed, in any case, sixty (60) days. If the stock transfer books shall
be closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, or to consent to any corporate action in
writing without a meeting, such books shall be closed for at least ten (10)
days immediately preceding such meeting or consent. If the Board of Directors
does not close the stock transfer books, the Board of Directors shall fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than sixty (60) days and, in case of a
meeting of or consent by the shareholders, not less than ten (10) days prior to
the date on which the particular action or consent requiring such determination
of shareholders is to be taken. If the stock transfer books are not closed and
no record date is fixed, the date on which the notice of the meeting is mailed,
the date the first written consent is given, or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders. A
determination of shareholders of record entitled to notice of or to vote at
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<PAGE>
a meeting of shareholders shall apply to any adjournment of such meeting unless
the Board of Directors fixes a new record date for the adjourned meeting.
Section 4. Notices of Meetings. Written or printed notice stating the
place, day and hour of each meeting of the shareholders and, in case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than ten (10) days nor more than sixty (60) days before
the date of the meeting, either personally or by mail, by or at the direction
of the President, the Secretary, or the person calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.
Section 5. Voting List. A complete list of shareholders entitled to
vote at each shareholders' meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and number of shares held by each
shareholder, shall be prepared by the Secretary or other officer or agent
having charge of the stock transfer books, and shall be kept on file at the
registered office of the Corporation and subject to inspection by any
shareholder during usual business hours for a period of at least ten (10) days
prior to such meeting. Such list shall be produced and kept open at such
meeting and at all times during such meeting shall be subject to inspection by
any shareholder.
Section 6. Quorum of Shareholders. Unless otherwise provided in the
Articles of Incorporation of the Corporation, the holders of a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of shareholders. The shareholders present at a duly
organized meeting may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 7. Adjournments of Meetings. If the holders of the amount of
stock neces sary to constitute a quorum shall fail to attend any meeting of the
shareholders in person or by proxy, then the holders of a majority of the votes
of the shareholders present, in person or by proxy, and entitled to vote
thereat, may adjourn any such meeting from time to time without notice, other
than by announcement at the meeting, until holders of the amount of stock
requisite to constitute a quorum shall be present at the particular meeting or
at any adjournment or adjournments thereof, in person or by proxy. The holders
of a majority of the votes of the shareholders present, in person or by proxy,
and entitled to vote at any meeting, may also adjourn any annual or special
meeting of the shareholders from time to time and without notice other than by
announcement at the meeting of the time and place at which the meeting will
reconvene, until the transaction of any and all business submitted or proposed
to be submitted to such meeting or any adjournment or adjourn ments thereof
shall have been completed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a
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notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at such meeting. At any such adjourned meeting at which a
quorum is present, in person or by proxy, any business may be transacted which
might have been transacted at the meeting as originally notified or called.
Section 8. Attendance and Proxies. Each shareholder entitled to vote
at the particular shareholders' meeting may attend such meeting and vote in
person or may attend such meeting by proxy, and vote by such proxy, appointed
by instrument in writing subscribed by the shareholder or by such shareholder's
duly authorized agent or attorney-in-fact and filed with the Secretary or other
officer or agent in charge of tabulating votes at such meeting, before or at
the time of the particular meeting, and the attendance or the vote at any such
meeting of a proxy of any such shareholder so appointed shall for all purposes
be considered as attendance or vote in person of such shareholder. No proxy
shall be valid after eleven (11) months from the date of its execution unless a
longer period is expressly provided in the proxy. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and unless coupled with an
interest. The Secretary or other officer or agent in charge of tabulating votes
at any shareholders' meeting shall decide all questions touching upon the
qualifications of voters, the validity of proxies or the acceptance or
rejection of votes.
Section 9. Conduct of Meetings. The President shall call each meeting
of the shareholders to order and shall act as Chairman of such meeting. If for
any reason whatever neither the President nor a Vice President of the
Corporation acts or will act as the Chairman of the meeting of the
shareholders, then the shareholders present, in person or by proxy, and
entitled to vote thereat may by majority vote appoint a Chairman who shall act
as Chairman of the meeting. The Chairman of the meeting shall determine the
order of business and the procedure at the meeting, including such regulation
of the conduct of discussion as seem to him appropriate.
The Secretary shall act as secretary of each meeting of the
shareholders. If for any reason whatever neither the Secretary nor an Assistant
Secretary acts or will act as secretary of the meeting of shareholders, then
the Chairman of the meeting or, if he fails to do so, the shareholders present,
either in person or by proxy, and entitled to vote thereat may by majority vote
appoint any person to act as secretary of the meeting and such person shall act
as secretary of the meeting.
Section 10. Voting of Shares. Except as may be otherwise provided in
the Articles of Incorporation of the Corporation or required by law, at each
meeting of the shareholders, each outstanding share, regardless of class,
standing in the shareholder's name on the stock transfer books on the record
date for the meeting shall be entitled to one (1) vote on each matter submitted
to a vote at such meeting. Treasury shares, shares of the Corporation's own
stock owned by another corporation, the majority of the voting stock of which
is owned or controlled by the Corporation, and shares of the Corporation's own
stock
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held by a corporation in a fiduciary capacity in favor of the Corporation shall
not be voted, directly or indirectly, at any meeting, and shall not be counted
in determining the total number of outstanding shares at any given time.
Section 11. Cumulative Voting. The right of cumulative voting shall
exist (in accordance with the terms of the Articles of Incorporation of the
Corporation, if so set forth) unless denied by the Articles of Incorporation.
Any shareholder who intends to cumulate his votes as herein authorized shall
give written notice of such intentions to the Secretary on or before the day
preceding the election at which such shareholder intends to cumulate his votes.
All shareholders may cumulate their votes if any shareholder gives the written
notice provided for herein.
Section 12. Voting of Shares Owned by Another Corporation. Shares of
stock of this Corporation standing in the name of another corporation, domestic
or foreign, on the books and records of this Corporation and having voting
rights may be voted by such officer, agent or proxy as the bylaws (or
comparable instrument) of such other corporation may authorize, or, in the
absence of such authorization, as the Board of Directors (or comparable body)
of such other corporation may determine, subject to such provisions of the
Texas Business Corporation Act as may be applicable in any instance.
Section 13. Shares Held by Administrators, Executors, Guardians,
Conservators, Trustees, Receivers or Pledgees. Shares held by an administrator,
executor, guardian, or conservator, may be voted by him so long as such shares
form part of an estate being served by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him unless such shares shall have been
transferred into his name as trustee. Shares standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without such shares' being transferred
into his name if authority so to do is contained in an appropriate order of the
Court by which such receiver was appointed. A shareholder whose shares are
pledged shall be entitled to vote such shares until such shares have been
transferred into the name of the pledgee or other purchaser thereof, and
thereafter the pledgee or other purchaser shall be entitled to vote the shares
so transferred.
Section 14. Decisions at Meetings. At all meetings of the
shareholders, all questions, business, and matters except those the manner of
deciding which is otherwise expressly governed by the Texas Business
Corporation Act, the Articles of Incorporation of the Corporation or these
Bylaws, shall be decided by the vote of the holders of a majority of the votes
of the shareholders of the Corporation present, in person or by proxy, and
entitled to vote, a quorum being present. Upon the demand of any qualified
voter or his proxy, voting on any question, matter or business at such meeting
shall be by ballot. In the event any business, question or matter is so voted
upon by ballot, then each ballot
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shall be signed by the shareholder voting or by his proxy and shall state the
number of shares so voted and such other information as may be required under
the procedure established for the meeting.
Section 15. Written Consent and Telephone Meetings. Any action
required or permitted to be taken at any annual or special meeting of
shareholders of the Corporation may be taken without a meeting, without prior
notice, and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by all of the shareholders (or such lesser number as
may be permitted by the Articles of Incorporation of the Corporation) entitled
to vote with respect to the subject matter thereof. Unless otherwise restricted
by the Articles of Incorporation of the Corporation or these Bylaws, and
subject to proper notice or waiver thereof, any regular or special meeting of
the shareholders may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation at such a meeting shall
constitute presence in person at such meeting and waiver of notice of such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Board of Directors. The business and affairs of the
Corporation shall be managed by the Board of Directors and, subject to such
restrictions, if any, as may be imposed by law, the Articles of Incorporation
or by these Bylaws, the Board of Directors may, and are fully authorized to,
exercise all the powers of the Corporation. Unless provided otherwise in the
Articles of Incorporation of the Corporation or these Bylaws, directors need
not be residents of the State of Texas, shareholders of the Corporation or have
any other specific qualification.
In addition to the powers and authority expressly conferred on the
Board of Directors by law, the Articles of Incorporation or these Bylaws, the
Board of Directors may exercise all the powers of the Corporation and do all
such lawful acts and things as may be done by the Corporation which are not by
the laws of the State of Texas, the Articles of Incorporation of the
Corporation or these Bylaws directed or required to be exercised or done by the
shareholders.
Section 2. Number of Directors. The number of directors which shall
constitute the whole Board of Directors shall be one (1), but the number of
directors may be increased or decreased from time to time by the affirmative
vote of a majority of all shareholders entitled to vote or by resolution of the
Board of Directors (provided such decrease does not
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shorten the term of any incumbent director); provided however, that the number
of directors shall never be less than one (1) nor more than fifteen (15). For
the purposes hereof, unless specifically provided otherwise by the shareholders
in connection with their election of a director, such director's "term" shall
begin on the date of his election and continue until the date set forth herein
for the next annual meeting of the shareholders, but such director shall
continue in office thereafter at the pleasure of the shareholders until his
successor shall have been elected and qualified.
Section 3. Election and Term. Except for directors elected to fill
vacancies or increases in the Board of Directors, the procedure for which is
set forth below, the directors shall be elected each year at the annual meeting
of the shareholders, or at a special meeting of the shareholders held in lieu
of the annual meeting, if the same is not held when provided for by these
Bylaws, and each such director shall hold office, unless removed, in accordance
with the provisions of applicable law, the Articles of Incorporation of the
Corporation and these Bylaws, or unless he resigns, for the term for which he
is elected and until his successor shall have been elected and qualified.
Section 4. Vacancies Created by Resignations and Increases. Any
vacancy occurring in the Board of Directors by reason of the resignation of a
director may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office and until his successor shall have been elected and
qualified. Any vacancy occurring in the Board of Directors by reason of an
increase in the number of directors may be filled either by the affirmative
vote of a majority of the Board of Directors, or a special meeting of the
shareholders entitled to elect such director or directors called for that
purpose, whichever shall first occur. A director elected to fill such a vacancy
shall serve only for a term continuing until the next annual meeting of the
shareholders. The Board of Directors shall not be permitted to fill more than
two (2) directorships created by an increase in the number of directors
constituting the Board of Directors during the period between any two
successive annual meetings of shareholders.
Section 5. Removal; Vacancies. Subject to Article 2.32 of the Texas
Business Corporation Act and other applicable law, the directors of the
Corporation, and each of them, may be removed from office from time to time and
at any time with or without cause, by the shareholders entitled to vote at any
meeting thereof at which a quorum is present, by the vote of a majority of the
votes of the shareholders present in person or by proxy and entitled to vote
thereat; and any vacancy or vacancies in the Board resulting therefrom may be
filled by the affirmative vote of a majority of the remaining directors, though
less than a quorum of the Board of Directors, or at a special meeting of the
shareholders entitled to vote thereon called for that purpose, whichever shall
first occur. A director elected to fill such a vacancy shall be elected for the
unexpired term (as defined in Section 2 of this Article) of his predecessor in
office and until his successor shall have been elected and qualified.
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Section 6. Meeting of Directors. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Texas.
Section 7. First Meeting. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as
the annual meeting of the stockhold ers, and no notice of such meeting shall be
necessary.
Section 8. Election of Officers. At the first meeting of the Board of
Directors in each year at which a quorum shall be present, held next after the
annual meeting of sharehold ers, the Board of Directors shall proceed to the
election of the officers of the Corporation.
Section 9. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated or
determined from time to time by the Board of Directors. Notice of such regular
meetings shall not be required.
Section 10. Special Meetings. Special meetings of the Board of
Directors shall be held whenever and wherever called or provided to be held by
the Chairman of the Board (if any), by the President or by any two of the
directors for the time being in office if the number of directors shall be five
(5) or more or by any one (1) of the directors for the time being in office if
the number of directors shall be four (4) or less, and at the place, day and
hour determined by the officer or the director(s) calling or providing for the
holding of the particular meeting.
Section 11. Notice. The Secretary or an Assistant Secretary shall, but
in the event of the absence of the Secretary or an Assistant Secretary or the
failure, inability, refusal or omission on the part of the Secretary or an
Assistant Secretary so to do, any other officer of the Corporation or the
director or directors calling such meeting may, give notice of each special
meeting, and of the place, day and hour of the particular meeting, in person or
by mail, or by telephone, telegraph or other means of communication, at least
twenty-four (24) hours before the meeting to each director. The attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 12. Quorum; Adjournment if Quorum is not Present; Required
Vote of Directors. Unless otherwise provided in the Articles of Incorporation
of the Corporation or by these Bylaws, a majority of the number of directors
fixed by these Bylaws shall constitute a quorum for the transaction of any and
all business of the Board of Directors, but if at any meeting, regular or
special, or any first meeting, of the Board of Directors there be less than a
quorum present, a majority of those present, or if only one (1) director be
present, then such director, may adjourn the meeting from time to time without
notice, other than by announcement at the meeting, until a quorum shall be
present at the meeting. A
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majority of the directors present at any meeting of the Board of Directors, or
if only one (1) director be present, then such director may adjourn any meeting
of the Board from time to time without notice, other than by announcement at
such meeting of the time and place at which the meeting will reconvene, until
the transaction of any and all business submitted or proposed to be submitted
to such meeting or any adjournment or adjournments thereof shall have been
completed. The vote of a majority of the directors present at any meeting of
the Board of Directors at which a quorum is present shall be the act of the
Board of Directors unless the act of a greater number is required by applicable
law, by the Articles of Incorporation of the Corporation or by these Bylaws.
Section 13. Business to be Transacted. Any and all business of any
nature or character whatsoever may be transacted and action may be taken
thereon at any such first meeting or at any other meeting, regular or special,
of the Board of Directors. At any meeting at which every director shall be
present, even though without any notice, any business may be transacted.
Section 14. Conduct of Meetings. At all meetings of the Board of
Directors, business shall be transacted in such order as from time to time
determined by the Chairman of the Board (if any), or in his absence by the
President, or in his absence by resolution of the Board of Directors. At all
meetings of the Board of Directors the Chairman of the Board (if any) shall
preside and in the absence of the Chairman of the Board, the President shall
preside and in the absence of the President, a Vice President shall preside,
but if none of the Chairman of the Board, the President or a Vice President
shall be present or if none shall for any reason preside at any meeting of the
Board, then a chairman of the meeting shall be chosen by the Board from among
the directors present and such chairman so chosen shall preside at the meeting.
The Secretary of the Corporation, or in his absence, an Assistant
Secretary, shall act as Secretary of the meetings of the Board of Directors,
but in the absence of the Secretary and an Assistant Secretary, or if for any
reason neither acts as Secretary thereof, the presiding officer shall appoint
any person of his choice to act, and such person shall act as Secretary of the
meeting.
Section 15. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
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Section 16. Compensation. Directors may receive such compensation for
their services, if any, as may be fixed or determined by resolution of the
Board of Directors, and the Board may fix a sum for expenses, if any, for
attendance at meetings of the Board, whether regular or special, or first
meetings; provided that nothing herein contained shall, or shall be construed
so as to, preclude any director from serving the Corporation in any other
capacity or receiving compensation therefor. Members of special or standing
committees may be allowed such compensation and expenses of attendance, if any,
for such committee meetings, as may be determined by resolution of the entire
Board of Directors.
Section 17. Consent and Telephone Meetings. Unless otherwise
restricted by the Articles of Incorporation of the Corporation or these Bylaws,
any action required or permitted to be taken at any annual or special meeting
of Directors of the Corporation may be taken without a meeting, without prior
notice, and without a vote, if the consent in writing, setting forth the action
so taken, shall be signed by all of the Directors of the Corporation. Unless
otherwise restricted by the Articles of Incorporation of the Corporation or
these Bylaws, and subject to proper notice or waiver thereof, any regular or
special meeting of the Directors may be held by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting and waiver of notice of such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 18. Approval or Ratification of Acts or Contracts by
Shareholders. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the
shareholders, or at any special meeting of the shareholders called for the
purpose of considering any such act or contract, and any act or contract that
shall be approved or ratified at any such meeting, at which a quorum is
present, by the holders of a majority (or such greater number as required by
statute, the Articles of Incorporation of the Corporation or these Bylaws) of
the shares entitled to vote thereon and present in person or by proxy at such
meeting, shall be as valid and binding upon the Corporation and upon all the
shareholders as if it had been approved by every shareholder of the
Corporation.
Section 19. Appointed Directors and Special Board Proceedings.
Notwithstanding anything in these Bylaws to the contrary, and in accordance
with Section 7.2 of the Stock Purchase Agreement by and among the Corporation,
SFX Entertainment, Inc. ("SFX") and the Corporation's shareholders dated
December 12, 1997 (the "Stock Purchase Agreement"), the terms and provisions of
this Section 19 of this Article III shall govern any matters set forth herein.
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(a) Special Appointment. In connection with the adoption of
this Section 19 of this Article III, the shareholders of the
Corporation have elected two directors to the Board of Directors:
Brian E. Becker, who is elected for a term beginning on the closing
date as described in Section 2.1 of the Stock Purchase Agreement (the
"Closing Date") and ending two years and fifteen days from that date;
and Allen J. Becker, who is to serve for a term to expire on the
earlier of (i) five (5) years following the Closing Date, or (ii) the
termination of Brian E. Becker's Employment Agreement (and not just
his employment) with the Corporation for any reason other than the
death or disability of Brian E. Becker.
(b) Removal. Neither Allen J. Becker or Brian E. Becker may
be removed from office as a director of the Corporation at any time
prior to the expiration of their term as set forth above except upon
their respective death or disability or with Adequate Cause. Adequate
Cause for the removal of either of such directors shall be defined to
include only the following, and only if it occurs with respect to him:
(i) in the case of Brian E. Becker, a violation by him of the
Amended and Restated Employment Agreement between Brian E.
Becker and SFX executed December 12, 1997 ("Brian E. Becker's
Employment Agreement") or in the case of Allen J. Becker, a
violation by him of the Employment Agreement between Allen J.
Becker and SFX executed on December 12, 1997 , in either case
which violation is not cured, or with respect to which such
director is not diligently pursuing a cure, within thirty
(30) days of SFX giving notice to such director to do so
(provided that no more than three (3) notices to cure need be
given for violations of the same nature);
(ii) a conviction of any felony or of any misdemeanor involving
dishonesty such as theft, forgery or fraud, or having been
indicted for, or had an information filed on him for, such a
crime, entering a plea of guilty or nolo contendere;
(iii) engaging in any intentional act of fraud against SFX, its
subsidiaries or any of their employees or properties, which
act shall be set forth and described in reasonable detail in
a written notice from the person alleging such fraud to the
director, such notice to provide for an opportunity for the
director to meet SFX's Board of Directors concerning the
alleged acts;
(iv) engaging in the intemperate use of alcohol or drugs on a
repeated basis in a manner which, in the good faith opinion
of SFX's Board of Directors is impairing the director's
ability to perform his duties or obligations hereunder and
such intemperate use thereafter continues in such a manner
following two notices thereof to director, with at least 30
days to correct following the first such notice and at least
10 more days to correct following the second such notice;
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(v) engaging in conduct giving rise to a claim by another
employee of sexual harassment, which claim, after a complete
and diligent investigation, would lead a reasonable person to
conclude that the director has violated Title VII of the 1964
Civil Rights Act, or similar state law, in a manner which
would reasonably and customarily require the discharge of an
executive employee; or
(vi) engaging in conduct giving rise to Legitimate Claims by any
persons that SFX or any of its subsidiaries is in violation
of any federal, state or local criminal statute or act. The
term "Legitimate Claims" shall mean any claims, allegations
or assertions which, in the reasonable opinion of SFX or any
of its subsidiaries (after a diligent investigation of the
facts), have substantial merit.
(c) Division Sale Meetings. A meeting, special or otherwise,
of the Board of Directors which is held on or before two (2) years and
fifteen (15) days following the Closing Date and at which among the
items to be discussed or acted on is a Division Sale (hereinafter
defined) (i) shall be subject to the provisions of this Section 19(c)
and (ii) is referred to herein as a "Division Sale Meeting." The sale
or proposed sale of all or any substantial portion of the
Corporation's Theatrical (hereinafter defined) line of business or
Motorsports (hereinafter defined) line of business is referred to
herein as a "Division Sale." No Division Sale may be implemented,
effected or completed without the prior approval of the Corporation's
Board of Directors in the manner hereinafter set forth.
A Division Sale which is presented to the Board of Directors
for approval before one (1) year from and after the Closing Date shall
require:
(i) majority approval of the Corporation's Board of
Directors; and
(ii) the affirmative vote of either Brian E. Becker
or Allen J. Becker in favor of such proposed sale.
If either the Corporation's Theatrical line of business or
Motorsports line of business has been previously sold by the
Corporation, any proposed sale of the other such line of business
after the first anniversary of the Closing Date and before the
fifteenth (15th) day following the second anniversary of the Closing
Date shall require:
(i) majority approval of the Corporation's Board of
Directors; and
(ii) the affirmative vote of either Brian E. Becker
or Allen J. Becker in favor of such proposed sale.
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Any Division Sale Meeting shall further require:
(i) that actual and specific notification setting
forth the type of business to be transacted at the Division
Sale Meeting shall be delivered to each director at least
thirty (30) days prior to the meeting. The attendance of a
director at a Division Sale Meeting shall not constitute a
waiver of notice of such meeting unless such director
expressly waives such notice by written statement. Any waiver
of notice of a Division Sale Meeting shall act only as a
waiver of notice to that specific meeting and not as a waiver
of notice generally; and
(ii) proof that the proposed purchaser in the
Division Sale has been notified of the existence of Brian E.
Becker's right of first refusal and purchase options set
forth in both section 7.2 of the Stock Purchase Agreement and
section 6.6 of Brian E. Becker's Employment Agreement with
respect to the Theatrical line of business and the
Motorsports line of business.
For the purposes of these Bylaws the following definitions apply:
(i) Motorsports - shall mean the presentation, promotion,
production or other exploitation of any live event featuring
motorized races or demonstrations, including motocross and
other motorized races, monster truck shows, air shows, thrill
shows, demolition derbies, tractor pulls, other events
developed by Motorsports and ancillary business.
(ii) Theatrical - shall mean (i) the presentation, production
or booking of, or the provision of any logistical or
technical services in connection with, any type of live
staged shows (other than musical concerts), including
Broadwaytype shows, magic shows, family entertainment and
variety shows, (ii) the ownership, operation or management of
venues in which theatrical-type presentations are typically
presented and (iii) ancillary businesses.
ARTICLE IV
MATTERS RELATING TO OFFICERS' AND DIRECTORS' SERVICES
Section 1. Indemnification of Directors and Officers. To the fullest
extent permitted by applicable law, including to the fullest extent permitted
by Article 2.02-1 of the Texas Business Corporation Act, any successor to or
modification of such article, or any other applicable statute or judicial or
administrative decision, the Corporation shall indemnify,
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reimburse and advance expenses prior to the final disposition of the proceeding
to, each director, former director or officer of the Corporation who was, is or
is threatened to be made a defendant or respondent in any proceeding, and shall
indemnify, reimburse and advance expenses prior to the final disposition of the
proceeding to, each director, former director, officer, employee, agent or
person who is or was serving at the request of the Corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise,
who was, is or is threatened to be made a defendant or respondent in any
proceeding.
Section 2. Insurance. To the fullest extent permitted by applicable
law, if approved by the Board of Directors, the Corporation may purchase and
maintain insurance to protect itself, its directors, officers and such other
persons as may be determined by the Board of Directors, against any and all
liabilities, whether or not the Corporation would have the power to indemnify
such persons against such liabilities under applicable law, to the fullest
extent permitted by applicable law.
Section 3. Nonexclusivity of Rights. The right to indemnification and
the advancement and payment of expenses and other rights permitted in this
Article IV shall not be exclusive of any other right which any person may have
or hereafter acquire under any law (common or statutory), the Articles of
Incorporation of the Corporation, these Bylaws, other agreements, the vote of
the shareholders or Board of Directors, or otherwise.
Section 4. Services. No director or, unless determined otherwise by
the Board of Directors, officer of the Corporation, shall be required to devote
his time or any particular portion of his time or render services or any
particular services exclusively to this Corporation. Each and every director
and, unless determined otherwise by the Board of Directors, each and every
officer of the Corporation, shall be entirely free to engage, participate and
invest in any and all such businesses, enterprises and activities, either
similar or dissimilar to the business, enterprise and activities of the
Corporation, without breach of duty to the Corporation or to its shareholders
and without accountability or liability to the Corporation or to its
shareholders in any event or under any circumstances or conditions.
Each and every director and, unless determined otherwise by the Board
of Directors, each and every officer of the Corporation, shall be entirely free
to act for, serve and represent any other corporation or corporations, entity
or entities, and any person or persons, in any capacity or capacities, and be
or become a director or officer, or both, of any other corporation or
corporations, entity or entities, irrespective of whether or not the business,
purposes, enterprises and activities, or any of them, thereof be similar or
dissimilar to the business, purposes, enterprises and activities, or any of
them, of the Corporation, without breach of duty to the Corporation or to its
shareholders and without
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accountability or liability of any character or description to the Corporation
or to its shareholders in any event or under any circumstances or conditions.
Section 5. Directors' and Officers' Interests in Contracts and
Transactions. No contract or transaction between the Corporation and one (1) or
more of its directors or officers, or between the Corporation and any firm or
partnership of which one (1) or more of its directors or officers are members
or employees or in which they are otherwise interested, or between the
Corporation and any corporation or association or other entity in which one (1)
or more of this Corporation's directors or officers are shareholders, members,
directors, officers or employees or in which they are otherwise interested,
shall be void or voidable solely by reason of or as a result of such connection
with or holding an office or offices as director or officer or as directors or
officers of this Corporation or such interest in or in connection with such
other firm, partnership, corporation, association or other entity,
notwithstanding the presence of such director or directors, or officer or
officers, at the meeting of the Board of Directors of this Corporation which
acts upon or in reference to any such contract or transaction, and
notwithstanding his or their being counted in determining the presence of a
quorum of the Board of Directors at such a meeting, nor his or their
participation in such meetings, nor his or their voting on or with respect to
such action, nor shall any director or officer be responsible to, or liable to
account to, this Corporation for any profits realized by or from or through any
such contract or transaction of the Corporation by reason of such interest or
his being or having been a director or officer, or both, of this Corporation if
the requirements and provisions of Article 2.35-1 of the Texas Business
Corporation Act, other applicable law, the Articles of Incorporation of this
Corporation and the Bylaws are met.
Section 6. Amendment or Repeal. Any repeal or amendment of any
provision of this Article shall be prospective only and shall not adversely
affect any right of any person existing at the time of such repeal or
amendment.
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors, by resolution or resolutions adopted by a
majority of the number of directors fixed by these Bylaws, may designate one
(1) or more directors to constitute an Executive Committee, or such other
committees as the Board of Directors may provide, may designate one (1) or more
directors as alternative members of any committee and in like manner may
discontinue any such committee. The members of such committees shall,
respectively, hold office only during the pleasure of the Board of Directors.
Each such committee, to the extent provided in such resolution or resolutions,
shall have and may exercise all of the authority of the entire Board of
Directors in the business and affairs of the Corporation except where action of
the entire Board of Directors
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is specified by the Texas Business Corporation Act or other applicable law.
Unless set forth in the resolution of the Board of Directors creating such
committee, no committee shall have the power or authority to authorize a
distribution or authorize the issuance of any shares of the Corporation.
Regular meetings of such committees shall be held at such time and place as the
committee may determine, and special meetings may be called at any time by the
President, the Chairman of the Board (if any) or by any member of the
committee. Notice of all meetings of such committees shall be given to each
member of such committee, in the same manner and specifying the same
information as notices required herein for special meetings of the entire Board
of Directors. A majority of the members of a committee shall constitute a
quorum for the transaction of business by such committee. Minutes of all such
meetings shall be kept by an officer in charge of such meeting and presented to
the entire Board of Directors upon request. All matters of procedure not
specifically set forth herein shall be as set forth in these Bylaws relating to
meetings of the entire Board of Directors. The designation of such committees
and the delegation thereto of authority shall not operate to relieve the Board
of Directors, or any member thereof, of any responsibility imposed upon it or
him by law.
ARTICLE VI
OFFICERS
Section 1. Officers. The officers of the Corporation shall be chosen
by the Board of Directors. The officers shall be a President and a Secretary,
and such other officers, including assistant officers, as the Board of
Directors may from time to time determine or elect. Any person may hold two or
more offices at the same time.
Section 2. Term; Removal. Each officer shall hold his office at the
pleasure of the Board of Directors. Any officer or agent elected or appointed
by the Board of Directors may be removed, either with or without cause, by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 3. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors for the unexpired portion
of the term for the person with respect to which a vacancy has occurred.
Section 4. Salaries. The salaries or other compensation of the
officers and agents of the Corporation shall be fixed from time to time by the
Board of Directors or, upon its failure to act, by the President.
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Section 5. Powers and Duties of Officers. Each officer of the
Corporation shall perform the duties and exercise the powers expressly
conferred on him or provided for in these Bylaws, as well as the usual duties
and powers incident to such office, and such other duties and powers as may be
assigned to him from time to time by the Board of Directors.
Section 6. Chairman of the Board. The Board of Directors may select
from among its members a Chairman of the Board who may, if so selected, preside
at all meetings of the Board of Directors and approve the minutes of all
proceedings thereat, and he shall be available to consult with and advise the
officers of the Corporation with respect to the conduct of the business and
affairs of the Corporation.
Section 7. President. The President, subject always to the control of
the Board of Directors, and subject to any limitations contained in the
Articles of Incorporation of the Corporation, these Bylaws or applicable law,
shall be the chief executive officer of the Corporation and shall have general
executive charge, management and control of the affairs, properties and
operations of the Corporation in the ordinary course of its business, with all
such duties, powers and authority with respect to such affairs, properties and
operations as may be reasonably incident to such responsibilities; he may
appoint or employ and discharge employees and agents of the Corporation and fix
their compensa tion; he may make, execute, acknowledge and deliver any and all
contracts, leases, deeds, conveyances, assignments, bills of sale, transfers,
releases and receipts, any and all mortgages, deeds of trust, indentures,
pledges, chattel mortgages, liens and hypothecations, and any and all bonds,
debentures and notes, and any and all other obligations and encumbrances and
any and all other instruments, documents, evidences of indebtedness, and papers
of any kind or character for and on behalf of and in the name of the
Corporation, and, with the Secretary or an Assistant Secretary, he may sign all
certificates for shares of the capital stock of the Corporation; he shall do
and perform such other duties and have such additional authority and powers as
from time to time may be assigned to or conferred upon him by the Board of
Directors.
Section 8. Vice Presidents. In the absence of the President or in the
event of his disability or refusal to act, a Vice President, if any (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election), subject always to the control of the Board of Directors, shall
perform the duties of the President (including any duty of the President set
forth in these Bylaws), and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall
perform such other duties as from time to time may be assigned to him by the
President or by the Board of Directors of the Corporation. Any action taken by
a Vice President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
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Section 9. Treasurer. The Treasurer, if any, subject always to the
control of the Board of Directors, shall have responsibility for the custody
and control of all the funds and securities of the Corporation. When necessary
or proper, he may endorse on behalf of the Corporation, for collection, checks,
notes and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depositories as shall be selected or
designated by or in the manner prescribed by the Board of Directors. He may
sign all receipts and vouchers for payments made to the Corporation, either
alone or jointly with such other officer as may be designated by the Board of
Directors. Whenever required by the Board of Directors he shall render a
statement of the cash account of the Corporation. He shall enter or cause to be
entered, punctually and regularly, on the books of the Corporation to be kept
by him or under his supervision or direction for that purpose, full and
accurate accounts of all moneys received and paid out by, for or on account of
the Corporation. He shall at all reasonable times exhibit such books and
accounts and other financial records to any director of the Corporation during
business hours. He shall have such other powers and duties as may be conferred
upon or assigned to him by the President or the Board of Directors. The
Treasurer shall perform all acts incident to the position of Treasurer subject
always to the control of the Board of Directors. He shall, if required by the
Board of Directors, give such bond for the faithful discharge of his duties in
such form and amounts as the Board of Directors may require.
Section 10. Assistant Treasurers. Each Assistant Treasurer, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as may be conferred upon or assigned to him by the
President or the Board of Directors. Each Assistant Treasurer shall have and
exercise the powers of the Treasurer during that officer's absence or inability
to act.
Section 11. Secretary. The Secretary, subject always to the control of
the Board of Directors, (1) shall keep the minutes of all meetings of which he
is the secretary, in books provided for that purpose, (2) shall attend to the
giving and serving of all notices if so requested, (3) may sign with the
President or a Vice President in the name of the Corporation and/or attest the
signatures of either to, all contracts, conveyances, transfers, assignments,
encumbrances, authorizations and all other instruments, documents and papers,
of any and every description whatsoever, of or executed for or on behalf of the
Corporation and affix the seal of the Corporation thereto, (4) may sign with
the President or a Vice President all certificates for shares of the capital
stock of the Corporation and affix the corporate seal of the Corporation
thereto, (5) shall have charge of and maintain and keep or supervise and
control the maintenance and keeping of the stock certificate books, transfer
books and stock ledgers and such other books and papers as the Board of
Directors may authorize, direct or provide for, all of which shall at all
reasonable times be open to the inspection of any director, upon request, at
the office of the Corporation during business hours, (6) shall in general
perform all the duties incident to the office of Secretary, and (7) shall have
such other powers and duties as may be conferred upon or assigned to him by the
President or the Board of Directors.
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Section 12. Assistant Secretaries. In the absence of the Secretary or
in the event of his disability or refusal to act, an Assistant Secretary (or in
the event there be more than one Assistant Secretary, the Assistant Secretaries
in the order designated, or in the absence of any designation, then in the
order of their election), subject always to the control of the Board of
Directors, shall perform the duties of the Secretary (including any duty of the
Secretary set forth in these Bylaws), and when so acting shall have all the
powers of and be subject to all the restrictions upon the Secretary. Each
Assistant Secre tary, if any, shall also have the usual powers and duties
pertaining to his office, together with such other powers and duties as may be
conferred upon or assigned to him by the President, the Board of Directors or
the Secretary.
Section 13. Securities of Other Issuers. Unless otherwise directed by
the Board of Directors, the President or any Vice President of the Corporation
shall have power and authority, on behalf of the Corporation, in person or by
proxy, to transfer, endorse for transfer, vote, consent or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute and deliver any waiver, proxy or
consent with respect to any such securities.
ARTICLE VII
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account, and minutes of the proceedings of the shareholders and the Board of
Directors, in written form or in any other form capable of being converted into
written form within a reasonable time. The Corporation shall keep, at its
registered office or principal place of business, a record of its shareholders,
giving the names and addresses of all shareholders and the number and class of
shares held by each.
ARTICLE VIII
CAPITAL STOCK
Section 1. Stock Certificates. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the Articles of Incorporation of the Corporation, as
shall be approved by the Board of Directors. The stock certificates shall be
consecutively numbered and shall be entered in the books of the Corporation as
they are issued and shall exhibit the holder's name and the number of shares.
The stock record books and the blank stock certificate books shall be kept by
the Secretary, or at the office of any transfer agent determined by the Board
of Directors. Every holder of stock in the Corporation shall be entitled to
have a certificate signed by,
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or in the name of the Corporation by the President or a Vice President, and the
Secretary or an Assistant Secretary, certifying the number of shares owned by
him in the Corpora tion, with the seal of the Corporation or a facsimile
thereof impressed or printed thereon if the Board of Directors shall have
provided for such a seal. Any or all of the signatures on such certificates may
be facsimile.
Section 2. Transfers. Shares of stock of the Corporation shall be
transferable in the manner prescribed by the laws of the State of Texas and in
these Bylaws. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate, or by his attorney-in-fact or
legal representative, duly and lawfully authorized in writing, and upon the
surrender of the certificate therefor, which shall be canceled, and a new
certificate, or certificates in the aggregate, shall be issued for a like
number of shares.
The Board of Directors may appoint a transfer agent or a registrar for
each class of stock, and may require all stock certificates to bear the
signature of such transfer agent and of such registrar or either of them.
Section 3. Registered Holders. The Corporation shall be entitled to
treat the person in whose name any share or shares of stock or any warrant,
right or option is registered as the owner thereof for all purposes and shall
not be bound to recognize any equitable or other claim to, or interest in, such
share or shares, warrant, right or option on the part of any other person,
whether or not the Corporation shall have actual or other notice thereof,
except as may be expressly provided otherwise by the laws of the State of
Texas.
Section 4. Lost or Destroyed Certificates. The Corporation may, in its
sole discretion, issue a new certificate for shares of its stock in the place
of any certificate theretofore issued by it, alleged to have been lost or
destroyed, and the President may, in his discretion, require the owner of the
lost or destroyed certificate, or his legal representa tive, to give the
Corporation such statement under oath or other evidence of such loss or
destruction as he may desire, and a bond in form, amount and with such surety
or sureties as he may prescribe or determine, which is sufficient, in the sole
judgment of the President, to indemnify and protect the Corporation against any
and all claims, liabilities, costs and expenses that may be made or asserted
against it or which it may suffer or incur or pay, on account of the alleged
loss of any such certificate or the issuance of such new certificate. A new
certificate may be issued without requiring any bond when, in the sole
discretion of the President, it is proper so to do. The Corporation shall have
no obligation of any kind to issue a new certificate to the owner of an
allegedly lost or destroyed certificate if such owner does not request the
issuance of a new certificate before the Corporation registers a transfer of
the shares represented by the allegedly lost or destroyed certificate.
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Section 5. Regulations. The Board of Directors shall have the power
and authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of the capital stock of the Corporation.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
such as the Board of Directors shall, by resolution, provide or establish or
such as the President shall determine subject to approval of the Board.
Section 2. Seal. If determined by the Board of Directors, the
Corporation shall have a seal, which seal shall be in such form as the Board of
Directors shall prescribe, and may be used by causing it or a facsimile thereof
to be impressed, affixed, printed, or reproduced in any other manner.
Section 3. Notice and Waiver of Notice. Whenever any notice whatever
is required to be given to any shareholder or director under the provisions of
the Texas Business Corporation Act or under the provisions of these Bylaws or
the Articles of Incorporation of the Corporation, said notice shall be deemed
sufficient if delivered personally or deposited in a post office box in a
sealed post-paid wrapper addressed to the person or persons entitled thereto at
their post office addresses, respectively, as same appear on the books or other
records of the Corporation, and such notice shall be deemed to have been timely
and duly given and received if given in any other manner or by any other means
authorized or provided for elsewhere in these Bylaws. Such notice shall be
deemed to have been given and received on the day of such personal delivery or
three (3) days after the date of mailing, as the case may be. A waiver or
waivers of notice in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
Section 4. Resignations. Any director or officer may resign at any
time. Oral or written notice of each such resignation shall be delivered to the
Board of Directors, the President or the Secretary. Each such resignation shall
take effect at the time specified therein, or, if no time be specified, at the
time of its receipt by either the Board of Directors or the President or the
Secretary.
Section 5. Persons. Wherever used or appearing in these Bylaws,
pronouns of the masculine gender shall include the persons of the female sex as
well as the neuter gender and the singular shall include the plural wherever
appropriate.
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Section 6. Laws and Statutes. Wherever used or appearing in these
Bylaws, the words "law" or "laws" or "statute" or "statutes," respectively,
shall mean and refer to laws and statutes, or a law or a statute, of the State
of Texas, to the extent only that such is or are expressly applicable, except
where otherwise expressly stated or the context requires that such words not be
so limited.
Section 7. Headings. The headings of the Articles and Sections of
these Bylaws are inserted for convenience of reference only and shall not be
deemed to be a part thereof or used in the construction or interpretation
thereof.
ARTICLE X
AMENDMENTS
With the exception of Section 19 of Article III, and as otherwise
provided in the Articles of Incorporation of the Corporation, these Bylaws may,
from time to time, be added to, changed, altered, amended or repealed or new
Bylaws may be made or adopted:
(a) by the affirmative vote of the holders of a majority of
the outstanding stock of the Corporation at any annual or special
meeting of the shareholders, or
(b) by the affirmative vote of at least a majority of the
Directors present at any annual or regular or special meeting of the
Board of Directors, unless the shareholders, in altering, amending or
adding a particular bylaw expressly provide that the Board of
Directors may not alter, amend or repeal such bylaw.
Prior to two (2) years and fifteen (15) years following the Closing Date,
Section 19 of Article III may not be amended without the unanimous approval of
the Corporation's Board of Directors and the unanimous approval of the
Corporation's shareholders.
WITNESS the signature of a duly authorized officer of the Corporation
effective the 16th day of February 1998.
------------------------------------
Jeffry B. Lewis, Secretary
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CERTIFICATE OF
LIMITED PARTNERSHIP
FOR
PACE ENTERTAINMENT GROUP, LTD.
1. Name of Partnership: PACE Entertainment Group, Ltd.
2. Address of Registered Office: 515 Post Oak Boulevard, Suite 300, Houston,
Texas 77027
3. Name and Address of Registered Agent. Jeffry B. Lewis
515 Post Oak Boulevard, Suite 300
Houston, Texas 77027
4. Address of Principal Office: 515 Post Oak Boulevard, Suite 300, Houston,
Texas 77027
5. General Partner:
(a) Name: PACE Concerts GP, Inc.
Mailing Address: 515 Post Oak Boulevard, Suite 300, Houston, Texas
77027
Street Address of Business or Residence (if different from above):
Same as mailing address
EXECUTED this 23rd day of December, 1996.
GENERAL PARTNER:
PACE ENTERTAINMENT GP, INC.
By: /s/ Brian E. Becker
--------------------------
Brian E. Becker, President
<PAGE>
ARTICLES OF INCORPORATION
OF
PACE MILTON KEYNES, INC.
I, the undersigned natural person, over the age of eighteen (18) years and
a citizen of the State of Texas, acting as incorporator of a corporation under
the Texas Business Corporation Act, hereby adopt the following Articles of
Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is PACE MILTON KEYNES, INC.
ARTICLE TWO.
The corporation shall have a perpetual existence.
ARTICLE THREE.
The purposes for which the corporation is organized are the transaction of
any and all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have authority
to issue is 1,000,000 shares of the par value of $0.01 each.
ARTICLE FIVE.
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE SIX.
The corporation may acquire its own shares and may reissue such shares as
provided by law.
ARTICLE SEVEN.
The address of its initial registered office is 515 Post Oak Boulevard,
Suite 300, Houston, Texas 77027 and the name of its initial registered agent at
such address is Jeffry B. Lewis.
ARTICLE EIGHT.
The number of Directors shall be fixed by the bylaws of the corporation,
and until changed by the bylaws, the number of directors constituting the Board
of Directors is one and the name and address of the person who is to serve as
the initial Director until the first annual meeting of the shareholders or until
his successor is elected and qualified is:
Allen J. Becker
515 Post Oak Boulevard
Suite 300
Houston, Texas 77027
<PAGE>
ARTICLE NINE.
The corporation may enter into contracts or transact business with one or
more of its directors or officers, or with any corporation, firm or association
in which any of its directors or officers are stockholders, directors, officers,
members, employees or otherwise interested; and no such contract or other
transaction shall be void or voidable or otherwise affected by reason of such
directorship or office in the corporation or such interest in such other firm,
corporation or association, notwithstanding that a director or directors having
such interest are present and counted in determining the existence of a quorum
at a meeting of the Board of Directors of the corporation, and notwithstanding
that the vote of such director or directors shall have been necessary to
authorize, approve, ratify, or otherwise obligate the corporation upon such
contract or transaction, provided that the fact of such interest shall be
disclosed or otherwise known to the Board of Directors, or a majority thereof at
the meeting of the Board of Directors which acts upon or in reference to such
contract or transaction; nor shall any director or officer be liable to account
to the corporation for any profits realized by or from or through any such
transaction or contract of the corporation by reason of such directorship,
office or interest, except as otherwise provided in the bylaws of the
corporation.
ARTICLE TEN.
The name and address of the incorporator is:
Michael F. Rogers
333 Clay Ave., Suite 800
Houston, Texas 77002
ARTICLE ELEVEN.
The corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
ARTICLE TWELVE.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify and advance expenses, prior to the final disposition of the
proceeding, to a director, and may, upon the determination of the Board of
Directors, indemnify and advance expenses, prior to the final disposition of the
proceeding, to an officer, employee, agent or person who is or was serving at
the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, who was, is or is threatened to be
made a defendant or respondent in any proceeding.
ARTICLE THIRTEEN.
The right of cumulative voting of shares is hereby expressly prohibited.
ARTICLE FOURTEEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to
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subscribe to or acquire shares, whether now or hereafter authorized, which may
at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed this instrument on this 26th day of
January, 1993.
Incorporator:
/s/ Michael F. Rogers
----------------------
Michael F. Rogers
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BYLAWS
OF
PACE MILTON KEYNES, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located in
Harris County, Texas.
Section 2. The corporation may also have offices at such other places both
within or without the State of Texas as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of directors
shall be held at such time and place, within or without the State of Texas, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days no less than forty-eight (48) hours prior to the time set forth
such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with or
without cause at any meeting of shareholders by majority vote of the shares then
entitled to vote, provided that notice of the proposed action is given in the
notice or waiver of notice of such meeting. Election of Directors shall be by
plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may be
held within or without the State of Texas. The annual meeting of the Board of
Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
<PAGE>
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors and
shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be issued
for lawful consideration (not less than par value) and to such persons as the
Board of Directors may determine from time to time. In the absence of fraud, the
judgment of the Board of Directors as to the value received for shares issued
shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article 2.02-1
of the Texas Business Corporation Act, any person who is or was a director,
officer, agent or employee of the corporation.
APPROVED by the initial director this ________ day of January, 1993.
ATTEST:
/s/ Jeffry B. Lewis
- ------------------------------
Jeffry B. Lewis, Secretary
<PAGE>
ARTICLES OF INCORPORATION
OF
PACE MOTOR SPORTS, INC.
I, the undersigned, a natural person over the age of twenty-one (21)
years, a citizen of the State of Texas and acting as the incorporator of a
corporation (the "Corporation") under the Texas Business Corporation Act (the
"Act") do hereby adopt the following Articles of Incorporation for the
Corporation:
ARTICLE I.
Name
The name of the Corporation is PACE MOTOR SPORTS, INC.
ARTICLE II.
Duration
The period of its duration is perpetual.
ARTICLE III.
Purposes and Powers
Section 1. Purposes: This Corporation shall be authorized to engage in
any lawful purpose or purposes, including, but not limited to the following,
to-wit:
(A) To engage in any and all business that a corporation may engage in
under the Act;
(B) To engage in the business of buying, selling, trading,
manufacturing, dealing in and dealing with goods, wares, and merchandising of
every kind and nature, and to carry on such business as wholesalers, retailers,
importers, and exporters, any one or more of them, and to purchase and sell all
such merchandise, supplies, materials and other articles as shall be necessary
or incidental to such business;
(C) To engage in the business of operating warehouses, stores, sales
agencies and other facilities for the storage and distribution of goods, wares,
merchandise and commodities;
(D) To engage in the business of purchasing, exchanging, leasing,
renting, hiring or otherwise holding, owning, managing, operating, exchanging,
selling and conveying, either alone or in conjunction with others, personal
property of every kind and character and description.
Section 2 Powers: The Corporation shall have the following powers:
(A) To purchase, receive, lease, own, occupy, rent, operate, hold,
use, develop, mortgage, pledge, sell, convey and dispose of, in any manner,
personal property of every type and description used or useful in or convenient
to the business of the Corporation;
<PAGE>
(B) To acquire, construct or cause to be constructed, lease, rent,
own, operate, convey, mortgage, pledge, hypothecate and dispose of real
property, land, buildings, plants, trucks, machinery, facilities, appliances,
supplies, and other equipment and property of all types used or useful in
connection with or convenient with respect to the business of the Corporation;
(C) To enter into, make, perform and carry out contracts of every
kind, and for any lawful purpose pertaining to the business or any property of
the Corporation, or in any manner incidental thereto, as principal, agent or
otherwise with any person, firm, association, corporation, partnership,
governmental agency or political subdivision;
(D) To mortgage by Deed of Trust or pledge, hypothecate or otherwise
create liens upon any part or all of the property of the Corporation, real,
personal or mixed;
(E) To act as the agent or representative of any firm, person,
partnership, association or corporation, so long as such acts are in
furtherance of the stated purposes of the Corporation;
(F) To conduct and carry on any of the purposes herein enumerated for
its own account or jointly with other persons, firms or corporations or as
agent or broker of or for any person, firm or corporation, and for such
compensation payable in cash or property, as it shall from time to time
determine;
(G) To acquire by purchase, subscription or otherwise, and to use,
sell, assign, transfer, mortgage, pledge or otherwise deal with or dispose of
stocks, bonds or any other obligations or securities of any person, company,
co-partnership, corporation or corporations or other entity, to merge or
consolidate with any corporation, in such manner as may be permitted by law; to
aid in any manner any corporation whose stocks or other obligations are held by
the Corporation, or in which this Corporation is in any way interested; and
while the owner of any such stocks and privileges of such ownership, to
exercise any and all voting powers thereon;
(H) To have one or more offices to carry on all or any of its
operations and business;
(I) To do everything necessary, advisable, proper or convenient for
the accomplishment of any of the purposes herein set forth; and, in general, to
carry on any lawful business necessary or incidental to the attainment of the
purposes of the Corporation, whether such business is similar or dissimilar in
nature to the objects and powers hereinabove set forth;
(J) To carry out the purposes hereinabove set forth in any state,
territory, district or possession of the United States or in any foreign
country, to the extent that such purposes are not forbidden by the law of such
state, territory, district, or possession of the United States, or by the law
of such foreign country; and
(K) The Corporation may purchase, directly or indirectly, its own
shares of stock without shareholder approval to the extent of the aggregate of
unrestricted capital surplus available therefor and unrestricted reduction
surplus available therefor.
Section 3. Statutory Powers: Subject to any limitations or
restrictions imposed by the Act or any other law, or by these Articles of
Incorporation, and solely in furtherance of, but not in addition to, the
purposes set forth in Section 1 of this Article, the Corporation shall have and
exercise all of the powers specified in the Act or in any other applicable laws
of the State of Texas.
Section 4. Limiting Clauses: Nothing in these Articles shall be
construed as authorizing the Corporation to transact any business in the State
of Texas prohibited by any law of the State of Texas, or to engage in any
activity in the State of Texas which lawfully cannot be engaged in without
first obtaining a license under the laws of Texas, and such license cannot be
lawfully granted to a corporation, or the Corporation. Nor shall this Article
be construed to authorize the Corporation to transact business in any
combination with the businesses listed in Article 2.01 Sections
-2-
<PAGE>
B(3)(a) or B(3)(b) of the Act. Further, nothing in the Article shall be deemed
to authorize any action in violation of the Anti-Trust Laws of Texas or any of
the provisions of Part Four of The Texas Miscellaneous Corporation Laws Act.
ARTICLE IV.
Authorized Shares
The aggregate number of shares that the Corporation shall have
authority to issue is One Million (1,000,000) shares of One Cent ($0.01) par
value per share.
ARTICLE V.
Initial Consideration
For Issuance of Shares
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done or property actually received,
which sum is not less than One Thousand Dollars ($1,000.00).
ARTICLE VI.
Initial Registered Office
and Agent
Section 1. Registered Office: The post office address of the initial
registered office of the Corporation is 1415 Post Oak Park Drive, Houston,
Texas 77027.
Section 2. Registered Agent: The name of its initial registered agent
at such address is Clarence Mayer.
ARTICLE VII.
Directors
The number of Directors constituting the initial Board of Directors is
one (1) and the name and address of the person who is to serve as director
until the first meeting of the shareholders, or until his successor is elected
and qualified is:
Name Address
---- -------
Alan Becker 4543 Post Oak Place Drive
Suite 200
Houston, Texas 77027
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<PAGE>
ARTICLE VIII.
Incorporator
The name and address of the incorporator of the Corporation is:
Name Address
---- -------
Mary Galligan Lapin, Totz, & Meyer
Suite 2090
Houston, Texas 77027
ARTICLE IX.
Cumulative Vote
The right for any shareholder to cumulate his votes in any election of
a director is hereby expressly denied.
ARTICLE X.
Pre-Emptive Rights
The shareholders of the Corporation shall not have preemptive rights
to acquire any unissued or treasury shares, capital stock or other securities
of the Corporation.
ARTICLE XI.
Directors' or Officers' Indemnity
Every director or officer of the Corporation shall be indemnified by
the Corporation against all expenses and liabilities, including counsel fees,
reasonably incurred by or imposed upon him in connection with any claim or pro
ceeding to which he may be made a party, or in which he may become involved, by
reason of his being or having been a director or officer of the Corporation, or
any settlement rector or officer thereof, whether or not he is a director or
officer at the time such expenses are incurred to the maximum extent permitted
by the Act.
ARTICLE XII.
Amend Bylaws
Except as may otherwise be provided by the Bylaws, the Board of
Directors of this Corporation is expressly authorized to alter, amend or repeal
the Bylaws, or to adopt new Bylaws of this Corporation, without any action on
the part of the shareholders; but the Bylaws made by the directors and the
power so conferred may be altered or repealed by the shareholders.
IN WITNESS WHEREOF, I have hereunto set my hand on this 10th day of
July, 1986.
/s/:Mary Galligan
-----------------------------------
MARY GALLIGAN
STATE OF TEXAS :
:
COUNTY OF HARRIS :
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<PAGE>
BEFORE ME, undersigned Notary Public, on this day personally appeared
MARY GALLIGAN, who being by me first duly sworn declared that she is the person
who signed the foregoing instrument as incorporator, and that the statements
therein contained are true.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 10th day of July, 1986.
/s/ Sharon Bowen
-----------------------------------
NOTARY PUBLIC in and for the
STATE OF TEXAS
Printed Name of Notary:
/s/Sharon Bowen
-----------------------------------
My Commission Expires:
/s/ February 25, 1989
-----------------------------------
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<PAGE>
CONSENT
The undersigned, being one of the officers and directors of Pace
Management Corporation does hereby consent and agree that Pace Motor Sports,
Inc. may use the name "Pace" in its corporate name.
/s/ Allen Becker
-----------------------------------
Allen Becker
Pace Management Corporation
4543 Post Oak Place Drive
Suite 200
Houston, Texas 77027
-6-
<PAGE>
BYLAWS
OF
PACE MOTOR SPORTS, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located
in Harris County, Texas.
Section 2. The corporation may also have offices at such other places
both within or without the State of Texas as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of
directors shall be held at such time and place, within or without the State of
Texas, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with
or without cause at any meeting of shareholders by majority vote of the shares
then entitled to vote, provided that notice of the proposed action is given in
the notice or waiver of notice of such meeting. Election of Directors shall be
by plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may
be held within or without the State of Texas. The annual meeting of the Board
of Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors
and shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
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<PAGE>
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be
issued for lawful consideration (not less than par value) and to such persons
as the Board of Directors may determine from time to time. In the absence of
fraud, the judgment of the Board of Directors as to the value received for
shares issued shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article
2.02-1 of the Texas Business Corporation Act, any person who is or was a
director, officer, agent or employee of the corporation.
APPROVED by the initial directors this 14th day of July, 1986.
ATTEST:
/s/: John A. Rubey
- -------------------------------
John A. Rubey, Secretary
-8-
<PAGE>
ARTICLES OF AMENDMENT
TO THE ARTICLES OF
INCORPORATION OF
PACE ENTERTAINMENT GROUP, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned, an officer of PACE ENTERTAINMENT GROUP, INC.
("Corporation") executes the following Articles of Amendment to the
Corporation's Articles of Incorporation.
1. The name of the Corporation is PACE ENTERTAINMENT GROUP, INC.
2. Article One of the Articles of Incorporation of the Corporation which
has heretofore read as follows:
"The name of the corporation is PACE ENTERTAINMENT GROUP, INC." is hereby
amended so as to read as follows:
"The name of the corporation is PACE MUSIC GROUP, INC."
3. The above amendment was adopted by unanimous consent of the
shareholders on March 11, 1991.
4. As of the date of the adoption of the above amendment, 1,000 shares of
the Corporation were outstanding and entitled to vote on the above amendment.
5. 1,000 shares voted for the above amendment and 0 shares voted against
the above amendment.
Dated effective as of June 30, 1991.
PACE ENTERTAINMENT GROUP, INC.
By: /s/ Jeffry B. Lewis
-----------------------------
Name: Jeffry B. Lewis
Title: Secretary
<PAGE>
ARTICLES OF INCORPORATION
PACE ENTERTAINMENT GROUP, INC.
I, the undersigned natural person, over the age of eighteen (18) years,
acting as incorporator of a corporation under the Texas Business Corporation
Act, hereby adopt the following Articles of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is Pace Entertainment Group, Inc.
ARTICLE TWO.
The period of its duration is perpetual.
ARTICLE THREE.
The purpose for which the corporation is organized is the transaction of
any and all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have authority
to issue, and which shall comprise its total capitalization, is one million
(1,000,000) shares of common stock having a par value of $1.00 per share.
ARTICLE FIVE.
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of at least ONE THOUSAND AND
no/100 DOLLARS ($1,000.00), consisting of money, labor done or property actually
received.
ARTICLE SIX.
The street address of the initial registered agent of the corporation is
515 Post Oak Boulevard, Suite 300, Houston, Texas 77027, and the name of its
initial registered agent at such address is John A. Rubey.
ARTICLE SEVEN.
The number of directors shall be fixed in the manner provided in the
bylaws of the corporation. The number of directors constituting the initial
Board of Directors shall be two (2) and the name and address of such persons
constituting the first Board of Directors who are to serve as directors until
the first annual meeting of the shareholders or until their successors are
elected and qualify, are:
Sidney L. Shlenker 515 Post Oak Boulevard
Suite 300
Houston, Texas 77027
Allen J. Becker 515 Post Oak Boulevard
Suite 300
Houston, Texas 77027
<PAGE>
ARTICLE EIGHT.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify and advance expenses, prior to the final disposition of the
proceeding, to a director, and may, upon the determination of the board of
directors, indemnify and advance expenses, prior to the final disposition of the
proceeding, to an officer, employee, agent or person who is or was serving at
the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, who was, is or is threatened to be
made a defendant or respondent in any proceeding.
ARTICLE NINE.
The name and address of the incorporator is:
Daniel L. Cohen
Sewell & Riggs
800 MCorp Plaza
333 Clay Avenue
Houston, Texas 77002-4086
ARTICLE TEN.
The right of cumulative voting of shares is hereby expressly prohibited.
ARTICLE ELEVEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation on this
31st day of May, 1989.
Incorporator:
/s/ Daniel L. Cohen
-----------------------------
Daniel L. Cohen
-2-
<PAGE>
BYLAWS
OF
PACE ENTERTAINMENT GROUP, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. Until the Board of Directors otherwise
determines, the registered office of the Corporation required by the Texas
Business Corporation Act to be maintained in the State of Texas shall be at the
address set forth in the Articles of Incorporation of the Corporation, but such
registered office may be changed from time to time by the Board of Directors in
the manner provided by law and need not be identical to the principal place of
business of the Corporation.
Section 2. Other Offices. The Corporation may also have offices at such
other places or locations, within or without the State of Texas, as the Board of
Directors may, by resolution, from time to time determine or the business of the
Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held at 10:00 am, on the last Friday in May of each year, if not a legal
holiday, and if a legal holiday, then on the next succeeding business day, or on
such other date and time as the Board of Directors shall fix and set forth in
the notice of the meeting, for the purpose of electing directors to succeed
those whose terms expire and for the transaction of any and all such other
business as may properly be brought before or submitted to this meeting. Any and
all business of any nature or character whatsoever may be transacted, and action
may be taken thereon, at any annual meeting, except as otherwise provided by law
or by these Bylaws.
Each annual meeting of the shareholders shall be held at the registered
office of the Corporation, or at such other place within or without the State of
Texas as may be determined by the Board of Directors and set forth in the notice
of the meeting. However, any annual meeting may be held at any place within or
without the State of Texas designated in a waiver or waivers of notice signed by
all of the shareholders.
Section 2. Special Meetings. Each special meeting of the shareholders
shall be held at the registered office of the Corporation, or at such other
place within or without the State of Texas as may be determined by the Board of
Directors and set forth in the notice of the meeting. However, any special
meeting may be held at any place within or without the State of Texas designated
in a waiver or waivers of notice signed by all of the shareholders.
Special meetings of the shareholders for any purpose or purposes, unless
otherwise prescribed by statute, or by the Articles of Incorporation of the
Corporation, may be called at any time by the President, by directors
constituting fifty percent (50%) or more of the Board of Directors, or by the
then holders of at least ten percent (10%) of the then issued and outstanding
shares of any class of the capital stock of the Corporation entitled to be voted
at such meeting, or of any class if there be more than one (1) class of such
stock entitled to vote on any matter to be submitted to the particular meeting.
Any notice calling a special meeting shall state the purpose or purposes of the
proposed meeting.
Section 3. Record Dates and Closing of Transfer Books. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or entitled to consent to any
corporate action in writing without a meeting, or entitled to receive payment of
any dividend, or in order to make a determination
<PAGE>
of shareholders for any other proper purpose, the Board of Directors of the
Corporation may provide, in advance, that the stock transfer books shall be
closed for a stated period but not to exceed, in any case, sixty (60) days. If
the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, or
to consent to any corporate action in writing without a meeting, such books
shall be closed for at least ten (10) days immediately preceding such meeting or
consent. If the Board of Directors does not close the stock transfer books, the
Board of Directors shall fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
(60) days and, in case of a meeting of or consent by the shareholders, not less
than ten (10) days prior to the date on which the particular action or consent
requiring such determination of shareholders is to be taken. If the stock
transfer books are not closed and no record date is fixed, the date on which the
notice of the meeting is mailed, the date the first written consent is given, or
the date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of such meeting unless the Board of Directors fixes a new record
date for the adjourned meeting.
Section 4. Notices of Meetings. Written or printed notice stating the
place, day and hour of each meeting of the shareholders and, in case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than ten (10) days nor more than sixty (60) days before
the date of the meeting, either personally or by mail, by or at the direction of
the President, the Secretary, or the person calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.
Section 5. Voting List. A complete list of shareholders entitled to vote
at each shareholders' meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and number of shares held by each
shareholder, shall be prepared by the Secretary or other officer or agent having
charge of the stock transfer books, and shall be kept on file at the registered
office of the Corporation and subject to inspection by any shareholder during
usual business hours for a period of at least ten (10) days prior to such
meeting. Such list and shall be produced and kept open at such meeting and at
all times during such meeting shall be subject to inspection by any shareholder.
Section 6. Quorum of Shareholders. Unless otherwise provided in the
Articles of Incorporation of the Corporation, the holders of a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of shareholders. The shareholders present at a duly
organized meeting may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 7. Adjournments of Meetings. If the holders of the amount of stock
necessary to constitute a quorum shall fail to attend any meeting of the
shareholders in person or by proxy, then the holders of a majority of the votes
of the shareholders present, in person or by proxy, and entitled to vote
thereat, may adjourn any such meeting from time to time without notice, other
than by announcement at the meeting, until holders of the amount of stock
requisite to constitute a quorum shall be present at the particular meeting or
at any adjournment or adjournments thereof in person or by proxy. The holders of
a majority of the votes of the shareholders present, in person or by proxy, and
entitled to vote at any meeting, may also adjourn any annual or special meeting
of the shareholders from time to time and without notice other than by
announcement at the meeting of the time and place at which the meeting will
reconvene, until the transaction of any and all business submitted or proposed
to be submitted to such meeting or any adjournment or adjournments thereof shall
have been completed. If the adjournment is for more than thirty (30) 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 such meeting. At any such adjourned meeting at which a
quorum is present, in person or by proxy, any business may be transacted which
might have been transacted at the meeting as originally notified or called.
Section 8. Attendance and Proxies. Each shareholder entitled to vote at
the particular shareholders
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<PAGE>
meeting may attend such meeting and vote in person or may attend such meeting by
proxy, and vote by such proxy, appointed by instrument in writing subscribed by
the shareholder or by such shareholder's duly authorized agent or
attorney-in-fact and filed with the Secretary or other officer or agent in
charge of tabulating votes at such meeting, before or at the time of the
particular meeting, and the attendance or the vote at any such meeting of a
proxy of any such shareholder so appointed shall for all purposes be considered
as attendance or vote in person of such shareholder. No proxy shall be valid
after eleven (II) months from the date of its execution unless a longer period
is expressly provided in the proxy. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and unless coupled with an
interest. The Secretary or other officer or agent in charge of tabulating votes
at any shareholders' meeting shall decide all questions touching upon the
qualifications of voters, the validity of proxies or the acceptance or rejection
of votes.
Section 9. Conduct of Meetings. The President shall call each meeting of
the shareholders to order and shall act as Chairman of such meeting. If for any
reason whatever neither the President nor a Vice-President of the Corporation
acts or will act as the Chairman of the meeting of the shareholders, then the
shareholders present, in person or by proxy, and entitled to vote thereat may by
majority vote appoint a Chairman who shall act as Chairman of the meeting. The
Chairman of the meeting shall determine the order of business and the procedure
at the meeting, including such regulation of the conduct of discussion as seem
to him appropriate.
The Secretary shall act as secretary of each meeting of the shareholders.
If for any reason whatever neither the Secretary nor an Assistant Secretary acts
or will act as secretary of the meeting of shareholders, then the Chairman of
the meeting or, if he fails to do so, the shareholders present, either in person
or by proxy, and entitled to vote thereat may by majority vote appoint any
person to act as secretary of the meeting and such person shall act as secretary
of the meeting.
Section 10. Voting of Shares. Except as may be otherwise provided in the
Articles of Incorporation of the Corporation or required by law, at each meeting
of the shareholders, each outstanding share, regardless of class, standing in
the shareholder's name on the stock transfer books on the record date for the
meeting shall be entitled to one (1) vote on each matter submitted to a vote at
such meeting. Treasury shares, shares of the Corporation's own stock owned by
another corporation, the majority of the voting stock of which is owned or
controlled by the Corporation, and shares of the Corporation's own stock held by
a corporation in a fiduciary capacity in favor of the Corporation shall not be
voted, directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares at any given time.
Section 11. Cumulative Voting. The right of cumulative voting shall exist
(in accordance with the terms of the Articles of Incorporation of the
Corporation, if so set forth) unless denied by the Articles of Incorporation.
Any shareholder who intends to cumulate his votes as herein authorized shall
give written notice of such intentions to the Secretary on or before the day
preceding the election at which such shareholder intends to cumulate his votes.
All shareholders may cumulate their votes if any shareholder gives the written
notice provided for herein.
Section 12. Voting of Shares Owned by Another Corporation. Shares of stock
of this Corporation standing in the name of another corporation, domestic or
foreign, on the books and records of this Corporation and having voting rights
may be voted by such officer, agent or proxy as the bylaws (or comparable
instrument) of such other corporation may authorize, or, in the absence of such
authorization, as the board of directors (or comparable body) of such other
corporation may determine, subject to such provisions of the Texas Business
Corporation Act as may be applicable in any instance.
Section 13. Shares Held by Administrators, Executors, Guardians,
Conservators, Trustees Receivers or Pledgees. Shares held by an administrator,
executor, guardian, or conservator, may be voted by him so long as such shares
form part of an estate being served by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him unless such shares shall have been
transferred into his name as trustee. Shares standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver
-3-
<PAGE>
may be voted by such receiver without such shares being transferred into his
name if authority so to do is contained in an appropriate order of the Court by
which such receiver was appointed. A shareholder whose shares are pledged shall
be entitled to vote such shares until such shares have been transferred into the
name of the pledgee or other purchaser thereof, and thereafter the pledgee or
other purchaser shall be entitled to vote the shares so transferred.
Section 14. Decisions at Meetings. At all meetings of the shareholders,
all questions, business, and matters except those the manner of deciding which
is otherwise expressly governed by the Texas Business Corporation Act, the
Articles of Incorporation of the Corporation or these Bylaws, shall be decided
by the vote of the holders of a majority of the votes of the shareholders of the
Corporation present, in person or by proxy, and entitled to vote, a quorum being
present. Upon the demand of any qualified voter or his proxy, voting on any
question, matter or business at such meeting shall be by ballot. In the event
any business, question or matter is so voted upon by ballot, then each ballot
shall be signed by the shareholder voting or by his proxy and shall state the
number of shares so voted and such other information as may be required under
the procedure established for the meeting.
Section 15. Written Consent and Telephone Meetings. Any action require or
permitted to be taken at any annual or special meeting of shareholders of the
Corporation may be taken without a meeting, without prior notice, and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof Unless otherwise restricted by the Articles of Incorporation of
the Corporation or these Bylaws, and subject to proper notice or waiver thereof,
any regular or special meeting of the shareholders may be held by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation at
such a meeting shall constitute presence in person at such meeting and waiver of
notice of such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Board of Directors. The business and affairs of the Corporation
shall be managed by the Board of Directors and, subject to such restrictions, if
any, as may be imposed by law, the Articles of Incorporation or by these Bylaws,
the Board of Directors may, and are fully authorized to, exercise all the powers
of the Corporation. Unless provided otherwise in the Articles of Incorporation
of the Corporation or these Bylaws, directors need not be residents of the State
of Texas, shareholders of the Corporation or have any other specific
qualification.
In addition to the powers and authority expressly conferred on the Board
of Directors by law, the Articles of Incorporation or these Bylaws, the Board of
Directors may exercise all the powers of the Corporation and do all such lawful
acts and things as may be done by the Corporation which are not by the laws of
the State of Texas, the Articles of Incorporation of the Corporation or these
Bylaws directed or required to be exercised or done by the shareholders.
Section 2. Number of Directors. The number of directors which shall
constitute the whole Board of Directors shall be two (2), but the number of
directors may be increased or decreased from time to time by the affirmative
vote of a majority of all shareholders entitled to vote or by resolution of the
Board of Directors (provided such decrease does not shorten the term of any
incumbent director); provided however, that the number of directors shall never
be less than one (1) nor more than seven (7). For the purposes hereof, unless
specifically provided otherwise by the shareholders in connection with their
election of a director, such director's "term" shall begin on the date of his
election and continue until the date set forth herein for the next annual
meeting of the shareholders, but such director shall continue in office
thereafter at the pleasure of the shareholders until his successor shall have
been elected and qualified.
Section 3. Election and Term. Except for directors elected to fill
vacancies or increases in the Board of
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Directors, the procedure for which is set forth below, the directors shall be
elected each year at the annual meeting of the shareholders, or at a special
meeting of the shareholders held in lieu of the annual meeting, if the same is
not held when provided for by these Bylaws, and each such director shall hold
office, unless removed, in accordance with the provisions of applicable law, the
Articles of Incorporation of the Corporation and these Bylaws, or he resigns,
for the term for which he is elected and until his successor shall have been
elected and qualified.
Section 4. Vacancies Created by Resignations and Increases. Any vacancy
occurring in the Board of Directors by reason of the resignation of a director
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office
and until his successor shall have been elected and qualified. Any vacancy
occurring in the Board of Directors by reason of an increase in the number of
directors may be filled either by the affirmative vote of a majority of the
Board of Directors, or a special meeting of the shareholders entitled to elect
such director or directors called for that purpose, whichever shall first occur.
A director elected to fill such a vacancy shall serve only for a term continuing
until the next annual meeting of the shareholders. The Board of Directors shall
not be permitted to fill more than two (2) directorships created by an increase
in the number of directors constituting the Board of Directors during the period
between any two successive annual meetings of shareholders if the number of
directors shall be five (5) or more, or more than one directorship created by an
increase in the number of directors constituting the Board of Directors during
the period between any two successive annual meetings of the shareholders if the
number of directors shall be four (4) or less.
Section 5. Removal; Vacancies. Subject to Article 2.32 of the Texas
Business Corporation Act and other applicable law, the directors of the
Corporation, and each of them, may be removed from office from time to time and
at any time with or without cause, by the shareholders entitled to vote at any
meeting thereof at which a quorum is present, by the vote of a majority of the
votes of the shareholders present in person or by proxy and entitled to vote
thereat; and any vacancy or vacancies in the Board resulting therefrom may be
filled by the affirmative vote of a majority of the remaining directors, though
less than a quorum of the Board of Directors, or at a special meeting of the
shareholders entitled to vote thereon called for that purpose, whichever shall
first occur. A director elected to fill such a vacancy shall be elected for the
unexpired term (as defined in Section 2 of this Article) of his predecessor in
office and until his successor shall have been elected and qualified.
Section 6. Meeting of Directors. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Texas.
Section 7. First Meeting. Each newly elected Board of Directors may hold
its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the stockholders, and no notice of such meeting shall be
necessary.
Section 8. Election of officers. At the first meeting of the Board of
Directors in each year at which a quorum shall be present, held next after the
annual meeting of shareholders, the Board of Directors shall proceed to the
election of the officers of the Corporation.
Section 9. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated or determined from
time to time by the Board of Directors. Notice of such regular meetings shall
not be required.
Section 10. Special Meetings. Special meetings of the Board of Directors
shall be held whenever and wherever called or provided to be held by the
Chairman of the Board (if any), by the President or by any two of the directors
for the time being in office if the number of directors shall be five (5) or
more or by any one (1) of the directors for the time being in office if the
number of directors shall be four (4) or less, and at the place, day and hour
determined by the officer or the director(s) calling or providing for the
holding of the particular meeting.
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Section 11. Notice. The Secretary or an Assistant Secretary shall, but in
the event of the absence of the Secretary or an Assistant Secretary or the
failure, inability, refusal or omission on the part of the Secretary or an
Assistant Secretary so to do, any other officer of the Corporation or the
director or directors calling such meeting, may give notice of each special
meeting, and of the place, day and hour of the particular meeting, in person or
by mail, or by telephone, telegraph or other means of communication, at least
twenty-four (24) hours before the meeting to each director. The attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 12. Quorum; Adjournment if Quorum is not Present; Required Vote of
Directors. Unless otherwise provided in the Articles of Incorporation of the
Corporation or by these Bylaws, a majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of any and all
business of the Board of Directors, but if at any meeting, regular or special,
or any first meeting, of the Board of Directors there be less than a quorum
present, a majority of those present, or if only one (1) director be present,
then such director, may adjourn the meeting from time to time without notice,
other than by announcement at the meeting, until a quorum shall be present at
the meeting. A majority of the directors present at any meeting of the Board of
Directors or if only one (1) director be present, then such director may adjourn
any meeting of the Board from time to time without notice, other than by
announcement at such meeting of the time and place at which the meeting will
reconvene, until the transaction of any and all business submitted or proposed
to be submitted to such meeting or any adjournment or adjournments thereof shall
have been completed. The vote of a majority of the directors present at any
meeting of the Board of Directors at which a quorum is present shall be the act
of the Board of Directors unless the act of a greater number is required by
applicable law, by the Articles of Incorporation of the Corporation or by these
Bylaws.
Section 13. Business to be Transacted. Any and all business of any nature
or character whatsoever may be transacted and action may be taken thereon at any
such first meeting or at any other meeting, regular or special, of the Board of
Directors. At any meeting at which every director shall be present, even though
without any notice, any business may be transacted.
Section 14. Conduct of Meetings. At all meetings of the Board of
Directors, business shall be transacted in such order as from time to time
determined by the Chairman of the Board (if any), or in his absence by the
President, or in his absence by resolution of the Board of Directors. At all
meetings of the Board of Directors the Chairman of the Board (if any) shall
preside and in the absence of the Chairman of the Board, the President shall
preside and in the absence of the President, a Vice-President shall preside, but
if none of the Chairman of the Board, the President or a Vice-President shall be
present or if none shall for any reason preside at any meeting of the Board,
then a chairman of the meeting shall be chosen by the Board from among the
directors present and such chairman so chosen shall preside at the meeting.
The Secretary of the Corporation, or in his absence, an Assistant
Secretary, shall act as Secretary of the meetings of the Board of Directors, but
in the absence of the Secretary and an Assistant Secretary, or if for any reason
neither acts as Secretary thereof, the presiding officer shall appoint any
person of his choice to act, and such person shall act as Secretary of the
meeting.
Section 15. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 16. Compensation. Directors may receive such compensation for
their services, if any, as may be fixed or determined by resolution of the Board
of Directors, and the Board may fix a sum for expenses, if any, for
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attendance at meetings of the Board, whether regular or special, or first
meetings; provided that nothing herein contained shall, or shall be construed so
as to, preclude any director from serving the Corporation in any other capacity
or receiving compensation therefor. Members of special or standing committees
may be allowed such compensation and expenses of attendance, if any, for such
committee meetings, as may be determined by resolution of the entire Board of
Directors.
Section 17. Consent and Telephone Meetings. Unless otherwise restricted by
the Articles of Incorporation of the Corporation or these Bylaws, any action
required or permitted to be taken at any annual or special meeting of Directors
of the Corporation may be taken without a meeting, without prior notice, and
without a vote, if the consent in writing, setting forth the action so taken,
shall be signed by all of the Directors of the Corporation. Unless otherwise
restricted by the Articles of Incorporation of the Corporation or these Bylaws,
and subject to proper notice or waiver thereof, any regular or special meeting
of the Directors may be held by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such a meeting shall constitute presence in
person at such meeting and waiver of notice of such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 18. Approval or Ratification of Acts or Contracts by Shareholders.
The Board of Directors in its discretion may submit any act or contract for
approval or ratification at any annual meeting of the shareholders, or at any
special meeting of the shareholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or ratified
at any such meeting, at which a quorum is present, by the holders of a majority
(or such greater number as required by statute, the Articles of Incorporation of
the Corporation or these Bylaws) of the shares entitled to vote thereon and
present in person or by proxy at such meeting, shall be as valid and binding
upon the Corporation and upon all the shareholders as if it had been approved by
every shareholder of the Corporation.
ARTICLE IV
MATTERS RELATING TO OFFICERS' AND DIRECTORS' SERVICES
Section 1. Non-Liability of Directors in Certain Cases. To the fullest
extent permitted by applicable law, no director shall be liable to the
corporation or any of the shareholders for his acts or omissions as a director
if he is excused from liability under the Articles of Incorporation of the
Corporation or any present or future provision or provisions of the Texas
Business Corporation Act, the Texas Miscellaneous Corporation Laws Act or other
applicable law.
Section 2. Indemnification of Directors and officers. To the fullest
extent permitted by applicable law, the Corporation shall indemnify, and
advance expenses prior to the final disposition of the proceeding to, each
director, former director, officer, employee, agent or person who is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, who was, is or
is threatened to be made a defendant or respondent in any proceeding.
Section 3. Insurance. To the fullest extent permitted by applicable law,
if approved by the Board of Directors, the Corporation may purchase and maintain
insurance to protect itself, its directors, officers and such other persons as
may be determined by the Board of Directors, against any and all liabilities,
whether or not the Corporation would have the power to indemnify such persons
against such liabilities under applicable law, to the fullest extent permitted
by applicable law.
Section 4. Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses and other rights permitted in this Article
IV shall not be exclusive of any other right which any person may have or
hereafter acquire under any law (common or statutory), the Articles of
Incorporation of the Corporation, these
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Bylaws, other agreements, the vote of the shareholders or Board of Directors, or
otherwise.
Section 5. Services. No director or, unless determined otherwise by the
Board of Directors, officer of the Corporation, shall be required to devote his
time or any particular portion of his time or render services or any particular
services exclusively to this Corporation. Each and every director and, unless
determined otherwise by the Board of Directors, each and every officer of the
Corporation, shall be entirely free to engage, participate and invest in any and
all such businesses, enterprises and activities, either similar or dissimilar to
the business, enterprise and activities of the Corporation, without breach of
duty to the Corporation or to its shareholders and without accountability or
liability to the Corporation or to its shareholders in any event or under any
circumstances or conditions.
Each and every director and, unless determined otherwise by the Board of
Directors, each and every officer of the Corporation, shall be entirely free to
act for, serve and represent any other corporation or corporations, entity or
entities, and any person or persons, in any capacity or capacities, and be or
become a director or officer, or both, of any other corporation or corporations,
entity or entities, irrespective of whether or not the business, purposes,
enterprises and activities, or any of them, thereof be similar or dissimilar to
the business, purposes, enterprises and activities, or any of them, of the
Corporation, without breach of duty to the Corporation or to its shareholders
and without accountability or liability of any character or description to the
Corporation or to its shareholders in any event or under any circumstances or
conditions.
Section 6. Directors' and Officers' Interests in Contracts and
Transactions. No contract or transaction between the Corporation and one (1) or
more of its directors or officers, or between the Corporation and any firm or
partnership of which one (1) or more of its directors or officers are members or
employees or in which they are otherwise interested, or between the Corporation
and any corporation or association or other entity in which one (l) or more of
this Corporation's directors or officers are shareholders, members, directors,
officers or employees or in which they are otherwise interested, shall be void
or voidable solely by reason of or as a result of such connection with or
holding an office or offices as director or officer or as directors or officers
of this Corporation or such interest in or in connection with such other firm,
partnership, corporation, association or other entity, notwithstanding the
presence of such director or directors, or officer or officers, at the meeting
of the Board of Directors of this Corporation which acts upon or in reference to
any such contract or transaction, and notwithstanding his or their being counted
in determining the presence of a quorum of the Board of Directors at such a
meeting, nor his or their participation in such meetings, nor his or their
voting on or with respect to such action, nor shall any director or officer be
responsible to, or liable to account to, this Corporation for any profits
realized by or from or through any such contract or transaction of the
Corporation by reason of such interest or his being or having been a director or
officer, or both, of this Corporation if the requirements and provisions of
Article 2.35-1 of the Texas Business Corporation Act, other applicable law, the
Articles of Incorporation of this Corporation and the Bylaws are met.
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors, by resolution or resolutions adopted by a majority
of the number of directors fixed by these Bylaws, may designate one (1) or more
directors to constitute an Executive Committee, or such other committees as the
Board of Directors may provide, and in like manner may discontinue any such
committee. The members of such committees shall, respectively, hold office only
during the pleasure of the Board of Directors. Each such committee, to the
extent provided in such resolution or resolutions, shall have and may exercise
all of the authority of the entire Board of Directors in the business and
affairs of the Corporation except where action of the entire Board of Directors
is specified by the Texas Business Corporation Act or other applicable law.
Unless set forth in the resolution of the Board of Directors creating such
committee, no committee shall have the power or authority to declare any
dividend or authorize the issuance of any shares of the Corporation. Regular
meetings of such committees shall be held at such time and place as the
committee may determine, and special meetings may be called at any time by the
President, the Chairman of the Board (if any) or by any member of the committee.
Notice of all meetings of such committees shall
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be given to each member of such committee, in the same manner and specifying the
same information as notices required herein for special meetings of the entire
Board of Directors. A majority of the members of a committee shall constitute a
quorum for the transaction of business by such committee. Minutes of all such
meetings shall be kept by an officer in charge of such meeting and presented to
the entire Board of Directors upon request. All matters of procedure not
specifically set forth herein shall be as set forth in these Bylaws relating to
meetings of the entire Board of Directors. The designation of such committees
and the delegation thereto of authority shall not operate to relieve the Board
of Directors, or any member thereof of any responsibility imposed upon it or him
by law.
ARTICLE VI
OFFICERS
Section 1. Officers. The officers of the Corporation shall be chosen by
the Board of Directors. The officers shall be a President and a Secretary, and
such other officers, including assistant officers, as the Board of Directors may
from time to time determine or elect. Any person may hold two or more offices at
the same time.
Section 2. Term; Removal. Each officer shall hold his office at the
pleasure of the Board of Directors. Any officer or agent elected or appointed by
the Board of Directors may be removed, either with or without cause, by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 3. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors for the unexpired portion of
the term for the person with respect to which a vacancy has occurred.
Section 4. Salaries. The salaries or other compensation of the officers
and agents of the Corporation shall be fixed from time to time by the Board of
Directors or, upon its failure to act, by the President.
Section 5. Powers and Duties of Officers. Each officer of the corporation
shall perform the duties and exercise the powers expressly conferred on him or
provided for in these Bylaws, as well as the usual duties and powers incident to
such office, and such other duties and powers as may be assigned to him from
time to time by the Board of Directors.
Section 6. Chairman of the Board. The Board of Directors may select from
among its members a Chairman of the Board who may, if so selected, preside at
all meetings of the Board of Directors and approve the minutes of all
proceedings thereat, and he shall be available to consult with and advise the
officers of the Corporation with respect to the conduct of the business and
affairs of the Corporation.
Section 7. President. The President, subject always to the control of the
Board of Directors, and subject to any limitations contained in the Articles of
Incorporation of the Corporation, these Bylaws or applicable law, shall be the
chief executive officer of the Corporation and shall have general executive
charge, management and control of the affairs, properties and operations of the
Corporation in the ordinary course of its business, with all such duties, powers
and authority with respect to such affairs, properties and operations as may be
reasonably incident to such responsibilities: he may appoint or employ and
discharge employees and agents of the Corporation and fix their compensation; he
may make, execute, acknowledge and deliver any and all contracts, leases, deeds
conveyances, assignments, bills of sale, transfers, releases and receipts, any
and all mortgages, deeds of trust, indentures, pledges, chattel mortgages, liens
and hypothecations, and any and all bonds, debentures and notes, and any and all
other obligations and encumbrances and any and all other instruments, documents,
evidences of indebtedness, and papers of any kind or character for and on behalf
of and in the name of the Corporation, and, with the Secretary or an Assistant
Secretary, he may sign all certificates for shares of the capital stock of the
Corporation; he shall do and perform such other duties and have such additional
authority and powers as from time to time may be assigned to or conferred upon
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him by the Board of Directors.
Section 8. Vice-Presidents. In the absence of the President or in the
event of his disability or refusal to act, a Vice-President, if any (or in the
event there be more than one Vice-President, the Vice-Presidents in the order
designated, or in the absence of any designation, then in the order of their
election), subject always to the control of the Board of Directors, shall
perform the duties of the President (including any duty of the President set
forth in these Bylaws), and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice-President shall
perform such other duties as from time to time may be assigned to him by the
President or by the Board of Directors of the Corporation. Any action taken by a
Vice-President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
Section 9. Treasurer. The Treasurer, if any, subject always to the control
of the Board of Directors, shall have responsibility for the custody and control
of all the funds and securities of the Corporation. When necessary or proper, he
may endorse on behalf of the Corporation, for collection, checks, notes and
other obligations and shall deposit the same to the credit of the Corporation in
such bank or banks or depositories as shall be selected or designated by or in
the manner prescribed by the Board of Directors. He may sign all receipts and
vouchers for payments made to the Corporation, either alone or jointly with such
other officer as may be designated by the Board of Directors. Whenever required
by the Board of Directors he shall render a statement of the cash account of the
Corporation. He shall enter or cause to be entered, punctually and regularly, on
the books of the Corporation to be kept by him or under his supervision or
direction for that purpose, full and accurate accounts of all moneys received
and paid out by, for or on account of the Corporation. He shall at all
reasonable times exhibit such books and accounts and other financial records to
any director of the Corporation during business hours. He shall have such other
powers and duties as may be conferred upon or assigned to him by the President
or the Board of Directors. The Treasurer shall perform all acts incident to the
position of Treasurer subject always to the control of the Board of Directors.
He shall, if required by the Board of Directors, give such bond for the faithful
discharge of his duties in such form and amounts as the Board of Directors may
require.
Section 10. Assistant Treasurers. Each Assistant Treasurer, if any, shall
have the usual powers and duties pertaining to his office, together with such
other powers and duties as may be conferred upon or assigned to him by the
President or the Board of Directors. Each Assistant Treasurer shall have and
exercise the powers of the Treasurer during that officer's absence or inability
to act.
Section 11. Secretary. The Secretary, subject always to the control of the
Board of Directors, (1) shall keep the minutes of all meetings of which he is
the secretary, in books provided for that purpose, (2) shall attend to the
giving and serving of all notices if so requested, (3) may sign with the
President or a Vice-President in the name of the Corporation and/or attest the
signatures of either to, all contracts, conveyances, transfers, assignments,
encumbrances, authorizations and all other instruments, documents and papers, of
any and every description whatsoever, of or executed for or on behalf of the
Corporation and affix the seal of the Corporation thereto, (4) may sign with the
President or a Vice-President all certificates for shares of the capital stock
of the Corporation and affix the corporate seal of the Corporation thereto, (5)
shall have charge of and maintain and keep or supervise and control the
maintenance and keeping of the stock certificate books, transfer books and stock
ledgers and such other books and papers as the Board of Directors may authorize,
direct or provide for, all of which shall at all reasonable times be open to the
inspection of any director, upon request, at the office of the Corporation
during business hours, (6) shall in general perform all the duties incident to
the office of Secretary, and (7) shall have such other powers and duties as may
be conferred upon or assigned to him by the President or the Board of Directors.
Section 12. Assistant Secretaries. In the absence of the Secretary or in
the event of his disability or refusal to act, an Assistant Secretary (or in the
event there be more than one Assistant Secretary, the Assistant Secretaries in
the order designated, or in the absence of any designation, then in the order of
their election), subject always to the control of the Board of Directors, shall
perform the duties of the Secretary (including any duty of the Secretary set
forth in these Bylaws), and when so acting shall have all the powers of and be
subject to all the restrictions upon the Secretary.
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Each Assistant Secretary, if any, shall also have the usual powers and duties
pertaining to his office, together with such other powers and duties as may be
conferred upon or assigned to him by the President, the Board of Directors or
the Secretary.
Section 13. Securities of Other Issuers. Unless otherwise directed by the
Board Of Directors, the President or any Vice-President of the Corporation shall
have power and authority, on behalf of the Corporation, in person or by proxy,
to transfer, endorse for transfer, vote, consent or take any other action with
respect to any securities of another issuer which may be held or owned by the
Corporation and to make, execute and deliver any waiver, proxy or consent with
respect to any such securities.
ARTICLE VII
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account, and minutes of the proceedings of the shareholders and the Board of
Directors, in written form or in any other form capable of being converted into
written form within a reasonable time. The Corporation shall keep, at its
registered office or principal place of business, a record of its shareholders,
giving the names and addresses of all shareholders and the number and class of
shares held by each.
ARTICLE VIII
CAPITAL STOCK
Section 1. Stock Certificates. The certificates for shares of the capital
stock of the Corporation shall be in such form, not inconsistent with that
required by law and the Articles of Incorporation of the Corporation, as shall
be approved by the Board of Directors. The stock certificates shall be
consecutively numbered and shall be entered in the books of the Corporation as
they are issued and shall exhibit the holder's name and the number of shares.
The stock record books and the blank stock certificate books shall be kept by
the Secretary, or at the office of any transfer agent determined by the Board of
Directors. Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of the Corporation by the President or a
Vice-President, and the Secretary or an Assistant Secretary, certifying the
number of shares owned by him in the Corporation, with the seal of the
Corporation or a facsimile thereof impressed or printed thereon if the Board of
Directors shall have provided for such a seal. Any or all of the signatures on
such certificates may be facsimile.
Section 2. Transfers. Shares of stock of the Corporation shall be
transferable in the manner prescribed by the laws of the State of Texas and in
these Bylaws. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate, or by his attorney-in-fact or legal
representative, duly and lawfully authorized in writing, and upon the surrender
of the certificate therefor, which shall be canceled, and a new certificate, or
certificates in the aggregate, shall be issued for a like number of shares.
The Board of Directors may appoint a transfer agent or a registrar for
each class of stock, and may require all stock certificates to bear the
signature of such transfer agent and of such registrar or either of them.
Section 3. Registered Holders. The Corporation shall be entitled to treat
the person in whose name any share or shares of stock or any warrant, right or
option is registered as the owner thereof for all purposes and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
or shares, warrant, right or option on the part of any other person, whether or
not the Corporation shall have actual or other notice thereof except as may be
expressly provided otherwise by the laws of the State of Texas.
Section 4. Lost or Destroyed Certificates. The Corporation may, in its
sole discretion, issue a new certificate
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for shares of its stock in the place of any certificate theretofore issued by
it, alleged to have been lost or destroyed, and the President may, in his
discretion, require the owner of the lost or destroyed certificate, or his legal
representative, to give the Corporation such statement under oath or other
evidence of such loss or destruction as he tray desire, and a bond in form,
amount and with such surety or sureties as he may prescribe or determine, which
is sufficient, in the sole judgment of the President, to indemnify and protect
the Corporation against any and all claims, liabilities, costs and expenses that
may be made or asserted against it or which it may suffer or incur or pay, on
account of the alleged loss of any such certificate or the issuance of such new
certificate. A new certificate may be issued without requiring any bond when, in
the sole discretion of the President, it is proper so to do. The Corporation
shall have no obligation of any kind to issue a new certificate to the owner of
an allegedly lost or destroyed certificate if such owner does not request the
issuance of a new certificate before the Corporation registers a transfer of the
shares represented by the allegedly lost or destroyed certificate.
Section 5. Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of the capital stock of the Corporation.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such
as the Board of Directors shall, by resolution, provide or establish or such as
the President shall determine subject to approval of the Board.
Section 2. Seal. If determined by the Board of Directors, the Corporation
shall have a seal, which seal shall be in such form as the Board of Directors
shall prescribe, and may be used by causing it or a facsimile thereof to be
impressed, affixed, printed, or reproduced in any other manner.
Section 3. Notice and Waiver of Notice. Whenever any notice whatever is
required to be given to any shareholder or director under the provisions of the
Texas Business Corporation Act or under the provisions of these Bylaws or the
Articles of Incorporation of the Corporation, said notice shall be deemed
sufficient if delivered personally or deposited in a post office box in a sealed
post-paid wrapper addressed to the person or persons entitled thereto at their
post office addresses, respectively, as same appear on the books or other
records of the Corporation, and such notice shall be deemed to have been timely
and duly given and received if given in any other manner or by any other means
authorized or provided for elsewhere in these Bylaws. Such notice shall be
deemed to have been given and received on the day of such personal delivery or
three (3) days after ter the date of mailing, as the case may be. A waiver or
waivers of notice in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
Section 4. Resignations. Any director or officer may resign at any time.
Oral or written notice of each such resignation shall be delivered to the Board
of Directors, the President or the Secretary. Each such resignation shall take
effect at the time specified therein, or, if no time be specified, at the time
of its receipt by either the Board of Directors or the President or the
Secretary.
Section 5. Persons. Wherever used or appearing in these Bylaws, pronouns
of the masculine gender shall include the persons of the female sex as well as
the neuter gender and the singular shall include the plural wherever
appropriate.
Section 6. Laws and Statutes. Wherever used or appearing in these Bylaws,
the words "law" or "laws" or "statute" or "statutes", respectively, shall mean
and refer to laws and statutes, or a law or a statute, of the State of Texas, to
the extent only that such is or are expressly applicable, except where otherwise
expressly stated or the context requires that such words not be so limited.
-12-
<PAGE>
Section 7. Headings. The headings of the Articles and Sections of these
Bylaws are inserted for convenience of reference only and shall not be deemed
to be a part thereof or used in the construction or interpretation thereof
ARTICLE X
AMENDMENTS
Except as otherwise provided in the Articles of Incorporation of the
Corporation, these Bylaws may, from time to time, be added to, changed, altered,
amended or repealed or new Bylaws may be made or adopted:
(a) by the affirmative vote of the holders of a majority of the
outstanding stock of the Corporation at any annual or special meeting of the
shareholders, or
(b) by the affirmative vote of at least a majority of the Directors
present at any annual or regular or special meeting of the Board of Directors,
unless the shareholders, in altering, amending or adding a particular bylaw
expressly provide that the Board of Directors may not alter, amend or repeal
such bylaw.
WITNESS the signature of a duly authorized officer of the Corporation
effective the day 26th day of June, 1989.
/s/ John A. Rubey
---------------------------
John A. Rubey,
Secretary/Treasurer
-13-
<PAGE>
ARTICLES OF AMENDMENT
TO THE ARTICLES OF
INCORPORATION OF
PACE SPECIAL EVENTS, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned, being an officer of PACE SPECIAL EVENTS, INC.
("Corporation") executes the following Articles of Amendment to the
Corporation's Articles of Incorporation on behalf of said corporation.
1. The name of the Corporation is PACE SPECIAL EVENTS, INC.
2. Article One of the Articles of Incorporation of the Corporation which
has heretofore read as follows:
"The name of the corporation is PACE SPECIAL EVENTS, INC." is
hereby amended so as to read as follows:
"The name of the corporation is PACE PRODUCTIONS, INC."
3. The above amendment was adopted by unanimous consent of the
shareholders effective as of September 24, 1991.
4. As of the date of the adoption of the above amendment, 1,000 shares of
the corporation were outstanding and entitled to vote on the above amendment.
5. 1,000 shares voted for adoption of the above amendment and 0 shares
voted against adoption of the above amendment.
Dated effective as of September 24, 1991.
PACE SPECIAL EVENTS, INC.
By: /s/ Jeffry B. Lewis
---------------------------
Name: Jeffry B. Lewis
Title: Secretary
<PAGE>
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION
OF
THE ENTERTAINMENT GROUP, INC.
ARTICLE ONE.
The name of the corporation is The Entertainment, Group, Inc.
ARTICLE TWO.
Article One of the Articles of Incorporation of the corporation is hereby
amended by deleting the existing Article One in its entirety and substituting in
its place the following:
"ARTICLE ONE.
The name of the corporation is Pace Special Events, Inc."
ARTICLE THREE.
The amendments set forth in these Articles of Amendment were adopted by
the sole shareholder of the corporation by Unanimous Consent dated July 1, 1991.
ARTICLE FOUR.
As of the date of approval of the amendments set forth in these Articles
of Amendment, 1,000 shares of common stock of the corporation were outstanding
and entitled to vote on the amendment.
ARTICLE FIVE.
The sole shareholder of the Corporation, holding 1,000 shares of common
stock, voted for these amendments.
Dated this 1st day of July, 1991.
/s/ John A. Rubey
-----------------------------
John A. Rubey
Secretary
<PAGE>
STATEMENT OF CHANGE OF
REGISTERED AGENT FOR
PACE SPECIAL EVENTS, INC.
1. The name of the corporation is PACE SPECIAL EVENTS, INC.
2. The post office address of the corporation's registered office is 515
Post Oak Boulevard, Suite 300, Houston, Texas 77027.
3. The address of the corporation's registered agent shall remain
unchanged.
4. The name of the corporation's registered agent is John A. Rubey.
5. The corporation's registered agent is hereby changed to be:
Jeffry B. Lewis
6. The post office address of the corporation's registered office and the
post office address of the business office of the corporation's registered
agent, as changed above, is identical.
7. The change of the corporation's registered agent was authorized by the
corporation's board of directors.
Dated effective as of June 30, 1991.
PACE SPECIAL EVENTS, INC.,
a Texas corporation
By: /s/ Jeffry B. Lewis
---------------------------
Name: Jeffry B. Lewis
Title: Secretary
<PAGE>
ARTICLES OF INCORPORATION
OF
THE ENTERTAINMENT GROUP, INC.
I, the undersigned natural person, over the age of eighteen (18) years,
acting as incorporator of a corporation under the Texas Business Corporation
Act, hereby adopt the following Articles of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is "The Entertainment Group, Inc."
ARTICLE TWO.
The period of its duration is perpetual.
ARTICLE THREE.
The purpose for which the corporation is organized is the transaction of
any and all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have authority
to issue, and which shall comprise its total capitalization, is 100,000 shares
of common stock having a par value of $1.00 per share.
ARTICLE FIVE.
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of at least ONE THOUSAND AND
NO/100 DOLLARS ($1,000.00), consisting of money, labor done or property actually
received.
ARTICLE SIX.
The street address of the initial registered office of the corporation is
515 Post Oak Blvd., Suite 300, Houston, Texas 77027, and the name of its initial
registered agent at such address is John A. Rubey.
ARTICLE SEVEN.
The number of directors shall be fixed in the manner provided in the
bylaws of the corporation. The number of directors constituting the initial
Board of Directors shall be four (4) and the name and address of such persons
constituting the initial Board of Directors, who are to serve as directors,
until the first annual meeting of the shareholders
<PAGE>
or until their successors are elected and qualify, are:
Steve Hauser 505 Barton Springs Road
Suite 1050
Austin, Texas 78709
Gary Becker 505 Barton Springs Road
Suite 1050
Austin, Texas 78709
Louis Messina 515 Post Oak Blvd.
Suite 300
Houston, Texas 77027
John A. Rubey 515 Post Oak Blvd.
Suite 300
Houston, Texas 77027
In the event the initial director (or all of the initial members of the
Board of Directors, if more than one) dies, becomes legally incapacitated or
resigns, the incorporator may appoint a substitute initial director or directors
to serve as set forth above.
ARTICLE EIGHT.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify, and advance expenses prior to the final disposition of the
proceeding to each director, former director, officer, employee, agent, or
person who is or was serving at the request of the corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise,
who was, is or is threatened to be made a defendant or respondent in any
proceeding.
ARTICLE NINE.
The name and address of the incorporator is:
Michael F. Rogers
Sewell & Riggs
800 MCorp Plaza
333 Clay Avenue
Houston, Texas 77002-4086
ARTICLE TEN.
The right of cumulative voting of shares is hereby expressly prohibited.
-2-
<PAGE>
ARTICLE ELEVEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation on this
19th day of September, 1989.
Incorporator:
/s/ Michael F. Rogers
------------------------------
Michael F. Rogers
-3-
<PAGE>
BYLAWS
OF
THE ENTERTAINMENT GROUP, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located in
Harris County, Texas.
Section 2. The corporation may also have offices at such other places both
within or without the State of Texas as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of directors
shall be held at such time and place, within or without the State of Texas, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with or
without cause at any meeting of shareholders by majority vote of the shares then
entitled to vote, provided that notice of the proposed action is given in the
notice or waiver of notice of such meeting. Election of Directors shall be by
plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may be
held within or without the State of Texas. The annual meeting of the Board of
Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
<PAGE>
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors and
shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be issued
for lawful consideration (not less than par value) and to such persons as the
Board of Directors may determine from time to time. In the absence of fraud, the
judgment of the Board of Directors as to the value received for shares issued
shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article 2.02-1
of the Texas Business Corporation Act, any person who is or was a director,
officer, agent or employee of the corporation.
APPROVED by the initial directors this 22nd day of September, 1989.
ATTEST:
- --------------------------------------
John A. Rubey, Secretary
-2-
<PAGE>
ARTICLES OF AMENDMENT
TO THE ARTICLES OF
INCORPORATION OF
PACE THEATRICAL GROUP, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned, being all of the initial directors of Pace
Theatrical Group, Inc. ("Corporation") adopts the following Articles of
Amendment to the Corporation's Articles of Incorporation.
1. The name of the Corporation is Pace Theatrical Group, Inc.
2. A new Article Twelve is hereby added at the end of the Articles of
Incorporation of the Corporation to read as follows:
"ARTICLE TWELVE
The Corporation shall indemnify its directors to the maximum
extent permitted by the provisions of Art. 2.02-1 of the Texas
Business Corporation Act. The Corporation's directors shall not be
liable to the Corporation nor its shareholders for monetary damages
for any act or omission in a director's capacity as a director to the
maximum extent that such non-liability is permitted by the provisions
of Art. 7.06 of the Texas Miscellaneous Corporation Laws Act."
3. The above amendment was adopted by unanimous consent of the Board
of Directors effective as of July 1, 1987.
4. As of the date of the adoption of the above amendment, no shares of
the Corporation were outstanding.
Dated effective as of July 1, 1987.
/s/Miles C. Wilkin
------------------------------------
MILES C. WILKIN
/s/John A. Rubey
------------------------------------
JOHN A. RUBEY
/s/Allen J. Becker
------------------------------------
ALLEN J. BECKER
<PAGE>
ARTICLES OF INCORPORATION
OF
PACE THEATRICAL GROUP, INC.
I, the undersigned natural person, over the age of eighteen (18) years
and a citizen of the State of Texas, acting as incorporator of a corporation
under the Texas Business Corporation Act, hereby adopt the following Articles
of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is PACE THEATRICAL GROUP, INC.
ARTICLE TWO.
The corporation shall have a perpetual existence.
ARTICLE THREE.
The purposes for which the corporation is organized are the
transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have
authority to issue is 1,000,000 shares of the par value of $0.01 each.
ARTICLE FIVE.
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE SIX.
The corporation may acquire its own shares and may reissue such shares
as provided by law.
ARTICLE SEVEN.
The address of its initial registered office is 4543 Post Oak Place
Drive, Suite 200, Houston, Texas 77027 and the name of its initial registered
agent at such address is John A. Rubey.
ARTICLE EIGHT.
The number of Directors shall be fixed by the bylaws of the
corporation, and until changed by the bylaws, the number of directors
constituting the Board of Directors is 3 and the names and addresses of the
persons who are to serve as Directors until the first annual meeting of the
shareholders or until their successors are elected and qualified is:
<PAGE>
John A. Rubey
4543 Post Oak Place Drive
Suite 200
Houston, Texas 77027
Allen J. Becker
4543 Post Oak Place Drive
Suite 200
Houston, Texas 77027
Miles C. Wilkin
1515 Broadway
Suite 3804
New York, New York 10036
ARTICLE NINE.
The corporation may enter into contracts or transact business with one
or more of its directors or officers, or with any corporation, firm or
association in which any of its directors or officers are stockholders,
directors, officers, members, employees or otherwise interested; and no such
contract or other transaction shall be void or voidable or otherwise affected
by reason of such directorship or office in the corporation or such interest in
such other firm, corporation or association, notwithstanding that a director or
directors having such interest are present and counted in determining the
existence of a quorum at a meeting of the Board of Directors of the
corporation, and notwithstanding that the vote of such director or directors
shall have been necessary to authorize, approve, ratify, or otherwise obligate
the corporation upon such contract or transaction, provided that the fact of
such interest shall be disclosed or otherwise known to the Board of Directors,
or a majority thereof at the meeting of the Board of Directors which acts upon
or in reference to such contractor transaction; nor shall any director or
officer be liable to account to the corporation for any profits realized by or
from or through any such transaction or contract of the corporation by reason
of such directorship, office or interest, except as otherwise provided in the
bylaws of the corporation.
ARTICLE TEN.
The name and address of the incorporator is:
Michael F. Rogers
800 MCorp Plaza
Houston, Texas 77002
ARTICLE ELEVEN.
The corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
- 2 -
<PAGE>
IN WITNESS WHEREOF, I have signed this instrument effective as of the
20th day of June, 1987.
Incorporator:
/s/Michael F. Rogers
------------------------------------
Michael F. Rogers
- 3 -
<PAGE>
THE STATE OF TEXAS )
) SS.:
COUNTY OF HARRIS )
I, Amy C. Wright, a notary public in and for the State of Texas, do
hereby certify that on this 27th day of July, 1987, personally appeared Michael
F. Rogers, who being by me first duly sworn, declared that he is the person who
signed the foregoing instrument as the incorporator and that the statements
therein contained are true.
/s/Amy C. Wright
------------------------------------
Notary Public in and for
The State of TEXAS
[AFFIXED SEAL HERE]
/s/Amy C. Wright
------------------------------------
Printed Name of Notary
My Commission Expires: 11/26/89
- 4 -
<PAGE>
BYLAWS
OF
PACE THEATRICAL GROUP, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located
in Harris County, Texas.
Section 2. The corporation may also have offices at such other places
both within or without the State of Texas as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of
directors shall be held at such time and place, within or without the State of
Texas, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with
or without cause at any meeting of shareholders by majority vote of the shares
then entitled to vote, provided that notice of the proposed action is given in
the notice or waiver of notice of such meeting. Election of Directors shall be
by plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may
be held within or without the State of Texas. The annual meeting of the Board
of Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
<PAGE>
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors
and shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be
issued for lawful consideration (not less than par value) and to such persons
as the Board of Directors may determine from time to time. In the absence of
fraud, the judgment of the Board of Directors as to the value received for
shares issued shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article
2.02-1 of the Texas Business Corporation Act, any person who is or was a
director, officer, agent or employee of the corporation.
ARTICLE VII
Without the express prior approval of all of the Directors, (i) no
loan, advance or expense reimbursement shall be made by the corporation to any
shareholder or any affiliate of a shareholder, (ii) no transaction shall be
entered into between the corporation and any shareholder or any affiliate of a
shareholder, (iii) no business shall be conducted outside of the Corporation's
normal scope of business operations, (iv) no issuance of new capital stock to
any person which issuance raises, in the aggregate, less than $3,000,000.00
shall be made and (v) no redemption of issued and outstanding stock in any
non-pro-rata manner shall be made. For purposes of the immediately preceding
sentence, the term"the corporation's normal scope of business operations" shall
mean the production of live theatrical presentations; booking, managing and
promoting road packages of specific live theatrical presentations; and such
related activities which the corporation and its predecessor, Old PTG, Inc.,
have historically performed in its normal and customary carrying out of its
business operations. This Article VII may not be altered, amended or repealed
without unanimous approval of the Directors at a meeting duly and regularly
called and held.
APPROVED by the initial director this 30th day of June, 1987.
ATTEST:
/s/John A. Rubey
- ------------------------------------
John A. Rubey, Secretary
- 2 -
<PAGE>
ARTICLES OF CORRECTION
OF
PACE TOURING CORPORATION
The undersigned submits these Articles pursuant to Texas Civil Statutes
Article 1302-7.01 to correct a document which contains an inaccurate or
erroneous statement.
ARTICLE ONE
The name of the entity is PACE Touring Corporation.
ARTICLE TWO
The document to be corrected is the Articles of Amendment which was filed
in the Office of the Secretary of State on March 4, 1996.
ARTICLE THREE
The inaccuracy, error or defect to be corrected is the last word in the
entity's name should have been ", Inc." and not "Corporation." The name of the
corporation is "PACE Touring, Inc." as opposed to "PACE Touring Corporation" as
it appeared in Article II of the Articles of Amendment.
ARTICLE FOUR
As corrected, the inaccurate, erroneous, or defective portion of the
document reads as follows:
"The name of the corporation is PACE Touring, Inc."
/s/Jeffry B. Lewis
-------------------------------
JEFFRY B. LEWIS, SECRETARY
<PAGE>
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
INNOVATIVE MEDIA CORPORATION
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to Articles of Incorporation:
ARTICLE I
The name of the corporation is INNOVATIVE MEDIA CORPORATION.
ARTICLE II
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the Corporation on February 23, 1996:
Article One of the Articles of Incorporation of the Corporation be
and hereby is amended to read in its entirety as follows:
"The name of the corporation is PACE Touring Corporation."
ARTICLE III
The number of shares outstanding at the time of such adoption was 1,000
and the number of shares entitled to vote thereon was 1,000.
ARTICLE IV
The holders of all of the shares outstanding entitled to vote on such
amendment have signed a consent in writing adopting said amendment.
Dated February 23, 1996.
INNOVATIVE MEDIA CORPORATION
By: /s/ Jeffry B. Lewis
-------------------------
JEFFRY B. LEWIS,
SECRETARY
<PAGE>
ARTICLES OF INCORPORATION
OF
INNOVATIVE MEDIA CORPORATION
I, the undersigned natural person, over the age of eighteen (18) years and
a citizen of the State of Texas, acting as incorporator of a corporation under
the Texas Business Corporation Act, hereby adopt the following Articles of
Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is INNOVATIVE MEDIA CORPORATION.
ARTICLE TWO.
The corporation shall have a perpetual existence.
ARTICLE THREE.
The purposes for which the corporation is organized are the transaction of
any and all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have authority
to issue is 1,000,000 shares of the par value of $0.01 each.
ARTICLE FIVE.
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
-1-
<PAGE>
ARTICLE SIX.
The corporation may acquire its own shares and may reissue such shares as
provided by law.
ARTICLE SEVEN.
The address of its initial registered office is 515 Post Oak Boulevard,
Suite 300, Houston, Texas 77027 and the name of its initial registered agent at
such address is Jeffry B. Lewis.
ARTICLE EIGHT.
The number of Directors shall be fixed by the bylaws of the corporation,
and until changed by the bylaws, the number of directors constituting the Board
of Directors is one and the name and address of the person who is to serve as
the initial Director until the first annual meeting of the shareholders or until
his successor is elected and qualified is:
Allen J. Becker
515 Post Oak Boulevard, Suite 300
Houston, Texas 77027
ARTICLE NINE.
The corporation may enter into contracts or transact business with one or
more of its directors or officers, or with any corporation, firm or association
in which any of its directors or officers are stockholders, directors, officers,
members, employees or otherwise interested; and no such contract or other
transaction shall be void or voidable or otherwise affected by reason of such
directorship or office in the corporation or such interest in such other firm,
corporation or association, notwithstanding that a director or directors having
such interest are present and counted in determining the existence of a quorum
at a meeting of the Board of Directors of the corporation, and notwithstanding
that the vote of such director or directors shall have been necessary to
authorize, approve, ratify, or otherwise obligate the corporation upon such
contract or transaction, provided that the fact of such interest shall be
disclosed or otherwise known to the Board of Directors, or a majority thereof at
the meeting of the Board of Directors which acts upon or in reference to such
contract or transaction; nor shall any director or officer be liable to account
to the corporation for any profits realized by or from or through any such
transaction or contract of the corporation by reason of such directorship,
office or interest, except as otherwise provided in the bylaws of the
corporation.
-2-
<PAGE>
ARTICLE TEN.
The name and address of the incorporator is:
Michael F. Rogers
333 Clay Ave., Suite 800
Houston, Texas 77002
ARTICLE ELEVEN.
The corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
ARTICLE TWELVE.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify and advance expenses, prior to the final disposition of the
proceeding, to a director, and may, upon the determination of the Board of
Directors, indemnify and advance expenses, prior to the final disposition of the
proceeding, to an officer, employee, agent or person who is or was serving at
the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, who was, is or is threatened to be
made a defendant or respondent in any proceeding.
ARTICLE THIRTEEN.
The right of cumulative voting of shares is hereby expressly prohibited.
ARTICLE FOURTEEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
-3-
<PAGE>
IN WITNESS WHEREOF, I have. signed this instrument on this 17th day of
June, 1993.
Incorporator:
/s/ Michael F. Rogers
--------------------------------------
Michael F. Rogers
-4-
<PAGE>
BYLAWS
OF
INNOVATIVE MEDIA CORPORATION
ARTICLE I
Section 1. The registered office of the corporation shall be located
in Harris County, Texas.
Section 2. The corporation may also have offices at such other places
both within or without the State of Texas as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of
directors shall be held at such time and place, within or without the State of
Texas, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver, of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may however, be removed with or
without cause at any meeting of shareholders by majority vote of the shares
then entitled to vote, provided that notice of the proposed action is given in
the notice or waiver of notice of such meeting. Election of Directors shall be
by plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may
be held within or without the State of Texas. The annual meeting of the Board
of Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors
and shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
<PAGE>
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be issued for
lawful consideration (not less than par value) and to such persons as the Board
of Directors may determine from time to time. In the absence of fraud, the
judgment of the Board of Directors as to the value received for shares issued
shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article
2.02-1 of the Texas Business Corporation Act, any person who is or was a
director, officer, agent or employee of the corporation.
APPROVED by the initial director this 18th day of June, 1993.
ATTEST:
/s/ Jeffrey B. Lewis
- -----------------------------
Jeffrey B. Lewis, Secretary
June 24, 1993
<PAGE>
ARTICLES OF INCORPORATION
OF
PACE VARIETY ENTERTAINMENT, INC.
I, the undersigned natural person. over the age of eighteen (18) years,
acting as incorporator of a corporation under the Texas Business Corporation
Act, hereby adopt the following Articles of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is PACE Variety Entertainment, Inc.
ARTICLE TWO.
The period of its duration is perpetual.
ARTICLE THREE.
The purpose for which the corporation is organized is the transaction of
any and all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have authority
to issue, and which shall comprise its total capitalization, is One Hundred
Thousand (100,000) shares of common stock having a par value of $0.01 per share.
ARTICLE FIVE.
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of at least ONE THOUSAND
AND NO/100 DOLLARS ($1,000.00), consisting of money, labor done or property
actually received.
ARTICLE SIX.
The street address of the initial registered office of the corporation is
515 Post Oak Blvd., Suite 300, Houston, Texas 77027, and the name of its initial
registered agent at such address is Jeffrey B. Lewis.
ARTICLE SEVEN.
The number of directors shall be fixed in the manner provided in the
bylaws of the corporation. The number of directors constituting the initial
Board of Directors shall be one (1) and the name and address of such person
constituting the initial Board of Directors, who is to serve as director until
the first annual meeting of the shareholders or until his successors are elected
and qualify, is:
Allen J. Becker 515 Post Oak Blvd., Suite 300
Houston, Texas 77027
<PAGE>
In the event the initial director (or all of the initial members of the Board of
Directors, if more than one) dies, becomes legally incapacitated or resigns
prior to the issuance of any shares, the incorporator may appoint a substitute
initial director or directors to serve as set forth above.
ARTICLE EIGHT.
To the fullest extent permitted by applicable law, including to the
fullest extent permitted by Article 1302-7.06 of the Texas Miscellaneous
Corporation Laws Act, any successor to or modification of such article, or any
other applicable statute or judicial or administrative decision, no director of
the corporation shall be liable to the corporation or any of its shareholders
for monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, including to the
fullest extent permitted by Article 2.02-1 of the Texas Business Corporation
Act, any successor to or modification of such article, or any other applicable
statute or judicial or administrative decision, the corporation shall indemnify,
reimburse and advance expenses prior to the final disposition of the proceeding
to, each director, former director or officer of the Corporation who was, is or
is threatened to be made a defendant or respondent in any proceeding, and shall
indemnify, reimburse and advance expenses prior to the final disposition of the
proceeding to, each director, former director, officer, employee, agent, or
person who is or was serving at the request of the corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, partnership. joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise,
who was, is or is threatened to be made a defendant or respondent in any
proceeding. Any repeal or amendment of this Article shall be prospective only,
and shall not adversely affect any right of any person existing at the time of
such repeal or amendment.
ARTICLE NINE.
The name and address of the incorporator is:
Michael F. Rogers
Gardere Wynne Sewell & Riggs, L.L.P.
333 Clay Avenue, 8th Floor
Houston, Texas 77002-4086
ARTICLE TEN.
The right of cumulative voting of shares is hereby expressly prohibited.
ARTICLE ELEVEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation on this
26th day of August, 1997.
Incorporator
/s/ Michael F. Rogers
------------------------
MICHAEL F. ROGERS
2
<PAGE>
BYLAWS
OF
PACE VARIETY ENTERTAINMENT, INC.
ARTICLE I.
OFFICES
Section 1. Registered Office. Until the Board of Directors otherwise
determines, the registered office of the Corporation required by the Texas
Non-Profit Corporation Act to be maintained in the State of Texas, shall be the
principal place of business of the Corporation, but such registered office may
be changed from time to time by the Board of Directors in the manner provided by
law and need not be identical to the principal place of business of the
Corporation.
Section 2. Other Offices. The Corporation may also have offices at such
other places or locations, within or without the State of Texas, as the Board of
Directors may, by resolution, from time to time determine or the business of the
Corporation may require.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. Board of Directors. The business, property and affairs of the
Corporation shall be managed and controlled by the Board of Directors and,
subject to such restrictions, if any, as may be imposed by law, the Articles of
Incorporation or by these Bylaws, the Board of Directors may, and are fully
authorized to, exercise all the powers of the Corporation. Directors need not be
residents of the State of Texas.
In addition to the powers and authority expressly conferred on the Board
of Directors by law, the Articles of Incorporation or any amendment thereof, by
these Bylaws or any amendment thereof, the Board may exercise all the powers of
the Corporation and do all such lawful acts and things as may be done by the
Corporation under the laws of the State of Texas, the Articles of Incorporation,
and these Bylaws.
Section 2. Number of Directors. The number of directors shall be one (1)
but the number of directors may be increased or decreased (provided such
decrease does not shorten the term of any incumbent director) from time to time
by amendment to the Bylaws of the Corporation.
Section 3. Term. Except as otherwise provided in Section 5 of this Article
III, each director shall hold office until removed in accordance with the
provisions of these Bylaws or he resigns. Each director shall qualify by
accepting his election to office either expressly or by acting as a director.
Section 4. Resignation. Any director or officer of the Corporation may
resign at any time as provided in Section 4 of Article VII of these Bylaws.
Section 5. Vacancy and Increase. Any vacancy or vacancies occurring in the
Board of Directors may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors.
Section 6. Removal. Subject to Art. 2.15 of the Texas Non-Profit
Corporation Act, the directors of the Corporation, and each of them, may be
removed from office from time to time and at any time with or without cause, by
a vote of the majority of the Board of Directors, including the Director whose
position is in dispute, at any meeting thereof at which a quorum is present; and
any vacancy or vacancies in the Board resulting therefrom may be filled by the
remaining directors, though less than a quorum.
<PAGE>
Section 7. Offices and Records. The directors may have or establish one or
more offices of the Corporation and keep the books and records of the
Corporation, except as otherwise provided by statute, at the principal place of
business of the Corporation. The Corporation shall maintain current true and
accurate financial records with full and correct entries made with respect to
all financial transactions of the Corporation, including all income and
expenditures, in accordance with generally accepted accounting practices. Based
on these records, the Board of Directors shall annually prepare or approve a
report of the financial activity of the Corporation for the preceding year. The
report shall conform to accounting standards as promulgated by the American
Institute of Certified Public Accountants and shall include a statement of
support, revenue, and expenses and changes in fund balances, a statement of
functional expenses, and balance sheets for all funds. All records of the
Corporation shall be kept for at least three years after the closing of each
fiscal year and shall be available to the public for inspection and copying
during normal business hours.
Section 8. Meeting of Directors. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Texas.
Section 9. Election of Officers. At the first meeting of the Board of
Directors in each year at which a quorum shall be present, held next after the
annual meeting of shareholders, the Board of Directors shall proceed to the
election of the officers of the Corporation.
Section 10. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated or determined from
time to time by resolution of the Board of Directors. Notice of such regular
meetings shall not be required.
Section 11. Special Meetings. Special meetings of the Board of Directors
shall be held whenever and wherever called or provided to be held by the
President or by any two of the directors for the time being in office if the
number of directors shall be five (5) or more or by any one of the directors for
the time being in office if the number of directors shall be four (4) or less,
and at the place, day and hour determined by the officer or the director(s)
calling or providing for the holding of the particular meeting, in each
instance, and such determination may be conclusively evidenced in a call, waiver
of notice or other communication signed by such officer or such director(s).
Section 12. Notice. The Secretary or an Assistant Secretary shall, but in
the event of the absence of the Secretary or an Assistant Secretary or the
failure, inability, refusal or omission on the-part of the Secretary or an
Assistant Secretary so to do, any other officer of the Corporation may, give
notice of each special meeting, and of the place, day and hour of the particular
meeting, in person or by mail, or by telephone, telegraph or other means of
communication, at least three (3) days before the meeting to each director. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
Section 13. Business to be Transacted. Neither the business to be
transacted at, nor the purpose or purposes of, any regular or special meeting of
the Board of Directors need be specified in the notice or any waiver or waivers
of notice of such meeting. Any and all business of any nature or character
whatsoever may be transacted and action may be taken thereon at any such first
meeting or at any other meeting, regular or special, of the Board of Directors.
At any meeting at which every director shall be present, even though without any
notice, any business may be transacted.
Section 14. Quorum - Adjournment if Quorum is not Present. A majority of
the number of directors fixed by these Bylaws shall constitute a quorum for the
transaction of any and all business, but if at any meeting, regular or special,
or any first meeting, of the Board of Directors there be less than a quorum
present, a majority of those present, or if only one director be present, then
such director, may adjourn the meeting from time to time without notice, other
than by announcement at the meeting, until a quorum shall be present at the
meeting. A majority of the directors present at any meeting of the Board of
Directors, or if only one director be present, then such director may adjourn
any meeting of the Board from time to time without notice, other than by
announcement at such meeting of the time and place at which the meeting will
reconvene, until the transaction of any and all business submitted or proposed
to be submitted to such meeting or any adjournment or adjournments thereof shall
have been completed. The act of a majority of the directors present at any
meeting of the Board of Directors at which a quorum is in attendance shall
constitute the act of the Board of Directors unless the act of a greater number
is required by the Articles of Incorporation or by these Bylaws.
2
<PAGE>
Section 15. Order of Business. At all meetings of the Board of Directors
business shall be transacted in such order as from time to time the Board of
Directors may determine. At all meetings of the Board of Directors the President
shall preside and in the absence of the President, a Vice President shall
preside, but if neither the President nor a Vice-President shall be present or
if neither shall for any reason preside at any meeting of the Board, then a
Chairman shall be chosen by the Board from among the directors present and such
Chairman so chosen shall preside at the meeting.
The Secretary of the Corporation, or in his absence, an Assistant
Secretary, shall act as Secretary of the meetings of the Board of Directors, but
in the absence of the Secretary and an Assistant Secretary, or if for any reason
neither acts as Secretary thereof, the presiding officer shall appoint any
person of his choice to act, and such person shall act as Secretary of the
meeting.
Section 16. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 17. Compensation. Directors, as such, shall not be entitled to
receive any fixed sums or stated salaries for their services, but, by resolution
of the Board, a fixed sum and expenses of attendance, if any, may be provided
and allowed by the Board of Directors for attendance at meetings of the Board,
whether regular or special, or first meetings; provided that nothing herein
contained shall, or shall be construed so as to, preclude any director from
serving the Corporation in any other capacity or receiving compensation
therefor. Members of special or standing committees may be allowed a fixed sum
and expenses of attendance, if any, at committee meetings.
Section 18. Consent and Telephone Meetings. Any action required or
permitted to be taken at any annual or special meeting of Directors of the
Corporation may be taken without a meeting, without prior notice, and without a
vote, if the consent in writing, setting forth the action so taken, shall be
signed by all of the Directors of the Corporation. Pursuant to proper notice or
waiver thereof, any regular or special meeting of the Directors may be held by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute presence in person at such meeting and waiver of
notice of such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE III.
OFFICERS' AND DIRECTORS' SERVICES,
CONFLICTING INTERESTS AND INDEMNIFICATION
Section 1. Services. No director and, unless otherwise determined by the
Board of Directors, no officer of this Corporation shall be required to devote
his time or any particular portion of his time or render services or any
particular services exclusively to this Corporation. Each and every director
and, unless otherwise determined by the Board of Directors, each and every
officer of this Corporation shall be entirely free to engage, participate and
invest in any and all such businesses, enterprises and activities, either
similar or dissimilar to the business, enterprise and activities of this
Corporation, without breach of duty to this Corporation and without
accountability or liability to this Corporation in any event or under any
circumstances or conditions.
Each and every director and, unless otherwise determined by the Board of
Directors, each and every officer of this Corporation shall, respectively, be
entirely free to act for, serve and represent any other corporation or
corporations, entity or entities, and any person or persons, in any capacity or
capacities, and be or become a director or officer, or both, of any other
corporation or corporations, entity or entities, irrespective of whether or not
the business, purposes, enterprises and activities, or any of them, thereof be
similar or dissimilar to the business, purposes, enterprises and activities, or
any of them, of this Corporation, without breach of duty to this Corporation or
to its shareholders and without accountability or liability of any character or
description to this Corporation or to its shareholders in any event or under any
circumstances or conditions.
3
<PAGE>
Section 2. Directors' and Officers' Interests in Contracts. No contract or
other transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any firm or partnership of which one or
more of its directors or officers are members or employees or in which they are
otherwise interested, or between the Corporation and any corporation or
association or other entity in which one or more of this Corporation's directors
or officers are shareholders, members, directors, officers or employees or in
which they are otherwise interested, shall be void or voidable by reason of or
as a result of such connection with or holding an office or offices as director
or officer or as directors or officers of this Corporation or such interest in
or in connection with such other firm, partnership, corporation, association or
other entity, notwithstanding the presence of such director or directors,
officer or officers, at the meeting of the Board of Directors of this
Corporation which acts upon or in reference to any such contract or other
transaction, and notwithstanding his or their participation in such action, if
(i) the fact of such interest shall be disclosed or known to the Board of
Directors and the Board of Directors shall authorize, approve or ratify such
contract or other transaction by vote of a majority of the directors present,
such interested director or directors to be counted in calculating the majority
necessary to carry such vote, or if (ii) the fact of such interest shall be
disclosed or known to the shareholders and the shareholders either by written
consent or by vote of holders of record of a majority of all the outstanding
shares of stock entitled to vote shall authorize, approve or ratify such
contract or other transaction; nor shall any director or officer be responsible
to, or liable to account to, this Corporation for any profits realized by or
from or through any such contract or other transaction of the Corporation so
authorized, ratified or approved, by reason of such interest or his being or
having been a director or officer, or both, of this Corporation. Nothing herein
contained shall create responsibility or liability in or in connection with any
such event or events or prevent the authorization, ratification or approval of
such contracts or other transactions in any other manner permitted by law or by
statute. This section shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common or statutory law
applicable thereto.
Section 3. Non-Liability of Directors and Officers in Certain Cases. No
director or officer or member of the Executive Committee shall be liable for his
acts as such if he is excused from liability under any present or future
provision or provisions of the Texas Business Corporation Act; and, in addition,
to the fullest extent now or hereafter permitted by the Texas Business
Corporation Act, each officer or director or member of the Executive Committee
shall in the discharge of any duty imposed or power conferred upon him by the
Corporation, be fully protected if, in the exercise of ordinary care, he acted
in good faith and in reliance upon the written opinion of an attorney for the
Corporation, the books of account or reports made to the Corporation by any of
its officials or by an independent certified public accountant or by an
appraiser selected with reasonable care by the Board of Directors or by such
Committee, or in reliance upon other records of the Corporation.
Section 4. Indemnification of Directors and Officers. Each director and
each officer or former director or officer of this Corporation shall be, and
hereby is, indemnified by the Corporation against liabilities imposed upon him
and expenses actually and reasonably incurred by him (including attorneys' fees)
in connection with any claim made against him, or the defense of any action,
suit or proceeding to or in which he is or may be made a party by reason of his
being or having been such director or officer, including such sums as
independent counsel selected by the Board of Directors shall deem reasonable
payment made in settlement of any such claim, action, suit or proceeding
primarily with a view of avoiding expenses of litigation; provided, however,
that no director or officer or former director or officer shall be indemnified
with respect to matters as to which he shall be adjudged in such action, suit or
proceeding to be liable for negligence or misconduct with respect to any matters
in which indemnity is sought. Such right of indemnification shall be in addition
to, but shall not exclude, any other rights to which directors or officers may
be entitled.
ARTICLE IV.
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors, by resolution or resolutions adopted by a majority
of the number of directors fixed by these Bylaws, may designate two or more
directors to constitute an Executive Committee, or such other committees as the
Board of Directors may provide and in like manner may discontinue any such
committee. The members of such committees shall, respectively, hold office only
during the pleasure of the Board of Directors. Such committees, to the extent
provided in such resolution or resolutions, shall have and may exercise all of
the authority of the Board of Directors in the business and affairs of the
Corporation during intervals between meetings of the Board of Directors except
where action of the Board of Directors is specified by the Texas Non-Profit
Corporation Act or other applicable
4
<PAGE>
law and may authorize the seal of the Corporation to be affixed to all
instruments, papers and documents which may require it; except that such
committees shall have no power (a) to elect directors, (b) to alter, amend or
repeal these Bylaws or any resolution or resolutions of the Board of Directors
designating any such committee, or (c) to appoint or replace any member of any
such committee. Regular meetings of any such committee shall be held at such
time and place as the committee may determine, and special meetings may be
called at any time by an officer of the Corporation or by any member of the
committee. No notice of any meeting of any committee shall be required, and a
majority of the members of the committee shall constitute a quorum for the
transaction of business. Minutes of all such meetings shall be kept and
presented to the Board of Directors upon request. The designation of any such
committee and the delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any responsibility imposed
upon it or him by law.
ARTICLE V.
OFFICERS
Section 1. Principal Officers. The officers of the Corporation shall be
chosen by the Board of Directors. The officers shall be a President, a
Secretary, a Treasurer, one or more Vice-Presidents, and such number of
Assistant Secretaries and Assistant Treasurers, as the Board may from time to
time determine or elect. Any person may hold two or more offices at the same
time, except the offices of President and Secretary.
Section 2. Additional Officers. The Board may appoint such other officers,
agents and factors as it shall deem necessary.
Section 3. Terms of Officers. Each officer shall hold his office until his
successor shall have been duly elected and qualified or until his death or until
he shall resign or shall have been removed in the manner hereinafter provided.
Section 4. Removal. Any officer or agent or member of the Executive
Committee elected or appointed by the Board of Directors may be removed by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 5. Vacancies. A vacancy in the office of any officer may be filled
by the vote of a majority of the directors then in office for the unexpired
portion of the term for the person with respect to which a vacancy has occurred,
in each instance.
Section 6. Powers and Duties of Officers. The officers so chosen shall
perform the duties and exercise the powers expressly conferred or provided for
in these Bylaws, as well as the usual duties and powers incident to such office,
respectively, and such other duties and powers as may be assigned to them from
time to time by the Board of Directors or by the President.
Section 7. Chairman of the Board. The Board of Directors may select from
among its members a Chairman of the Board who may, if so selected, preside at
all meetings of the Board of Directors and approve the minutes of all
proceedings thereat, and he shall be available to consult with and advise the
officers of the Corporation with respect to the conduct of the business and
affairs of the Corporation.
Section 8. The President. The President, subject to the control of the
Board of Directors, shall be the chief executive officer of the Corporation and
shall have general executive charge, management and control of the affairs,
properties and operations of the Corporation in the ordinary course of its
business, with all such duties, powers and authority with respect to such
affairs, properties and operations as may be reasonably incident to such
responsibilities; he may appoint or employ and discharge employees and agents of
the Corporation and fix their compensation; he may make, execute, acknowledge
and deliver any and all contracts, leases, deeds, conveyances, assignments,
bills of sale, transfers, releases and receipts, any and all mortgages, deeds of
trust, indentures, pledges, chattel mortgages, liens and hypothecations, and any
and all bonds, debentures and notes, and any and all other obligations and
encumbrances and any and all other instruments, documents and papers of any kind
or character for and on behalf of and in the name of the Corporation, and, with
the Secretary or an Assistant Secretary, he may sign all certificates for shares
of the capital stock
5
<PAGE>
of the Corporation; he shall do and perform such other duties and have such
additional authority and powers as from time to time may be assigned to or
conferred upon him by the Board of Directors.
Section 9. Vice-Presidents. In the absence of the President or in the
event of his disability or refusal to act, the Vice-President (or in the event
there be more than one Vice-President, the Vice-Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice-President shall perform such other duties as from time to
time may be assigned to him by the President or by the Board of Directors of the
Corporation. Any action taken by a Vice-President in the performance of the
duties of the President shall be conclusive evidence of the absence or inability
to act of the President at the time such action was taken.
Section 10. Treasurer. The Treasurer shall have custody of all the funds
and securities of the Corporation which come into his hands. When necessary or
proper, he may endorse on behalf of the Corporation, for collection, checks,
notes and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depositories as shall be selected or
designated by or in the manner prescribed by the Board of Directors. He may sign
all receipts and vouchers for payments made to the Corporation, either alone or
jointly with such officer as may be designated by the Board of Directors.
Whenever required by the Board of Directors he shall render a statement of his
cash account. He shall enter or cause to be entered, punctually and regularly,
on the books of the Corporation to be kept by him or under his supervision or
direction for that purpose, full and accurate accounts of all moneys received
and paid out by, for or on account of the Corporation. He shall at all
reasonable times exhibit his books and accounts and other financial records to
any director of the Corporation during business hours. He shall have such other
powers and duties as may be conferred upon or assigned to him by the Board of
Directors. The Treasurer shall perform all acts incident to the position of
Treasurer subject always to the control of the Board of Directors. He shall, if
required by the Board of Directors, give such bond for the faithful discharge of
his duties in such form and amounts as the Board of Directors may require.
Section 11. Assistant Treasurers. Each Assistant Treasurer shall have the
usual powers and duties pertaining to his office, together with such other
powers and duties as may be conferred upon or assigned to him by the Board of
Directors. The Assistant Treasurers shall have and exercise the powers of the
Treasurer during that officer's absence or inability to act.
Section 12. Secretary. The Secretary (1) shall keep the minutes of all
meetings of the Board of Directors and the minutes of all meetings of the
shareholders, in books provided for that purpose, (2) shall attend to the giving
and serving of all notices, (3) may sign with the President or a Vice-President
in the name of the Corporation and/or attest the signatures of either to, all
contracts, conveyances, transfers, assignments, encumbrances, authorizations and
all other instruments, documents and papers, of any and every description
whatsoever, of or executed for or on behalf of the Corporation and affix the
seal of the Corporation thereto, (4) may sign with the President or a Vice
President all certificates for shares of the capital stock of the Corporation
and affix the corporate seal of the Corporation thereto, (5) shall have charge
of and maintain and keep or supervise and control the maintenance and keeping of
the stock certificate books, transfer books and stock ledgers and such other
books and papers as the Board of Directors may authorize, direct or provide for,
all of which shall at all reasonable times be open to the inspection of any
director, upon request, at the office of the Corporation during business hours,
(6) shall in general perform all the duties incident to the office of Secretary,
and (7) shall have such other powers and duties as may be conferred upon or
assigned to him by the Board of Directors; subject always to the control of the
Board of Directors.
Section 13. Assistant Secretaries. Each Assistant Secretary shall have the
usual powers and duties pertaining to his office, together with such other
powers and duties as may be conferred upon or assigned to him by the Board of
Directors or the Secretary. The Assistant Secretaries shall have and exercise
the powers of the Secretary during that officer's absence or inability to act.
ARTICLE VI.
BOOKS, DOCUMENTS AND ACCOUNTS
6
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The Board of Directors shall have power to keep the books, documents and
accounts of the Corporation outside of the State of Texas, except that a record
of its shareholders, giving the names and addresses of all shareholders and the
number and class of shares held by each shall be kept at its registered office
or principal place of business, or at the office of its transfer agent or
registrar and the original or a duplicate stock ledger shall at all times be
kept within the State of Texas.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such
as the Board of Directors shall, by resolution, provide or establish or such as
the President shall determine subject to approval of the Board.
Section 2. Seal. The seal of the Corporation shall be in such form as the
Board of Directors shall prescribe, and may be used by causing it or a facsimile
thereof to be impressed, affixed, printed, or reproduced in any other manner.
Section 3. Notice and Waiver of Notice. Whenever any notice whatever is
required to be given to any shareholder or director under the provisions of the
Texas Business Corporation Act or under the provisions of these Bylaws or the
Articles of Incorporation of this Corporation, said notice shall be deemed to be
sufficient if given by depositing the same in a post office box in a sealed
post-paid wrapper addressed to the person or persons entitled thereto at their
post office addresses, respectively, as same appear on the books or other
records of the Corporation, and such notice shall be deemed to have been given
and received if given in any other manner or by any other means authorized or
provided for elsewhere in these Bylaws. A waiver or waivers of notice, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be equivalent to the giving of such notice.
Section 4. Resignations. Any director or officer may resign at any time.
Each such resignation shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
either the Board of Directors or the President or the Secretary. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
Section 5. Securities of Other Corporations. The President or any
Vice-President of the Corporation shall have power and authority to transfer,
endorse for transfer, vote, consent or take any other action with respect to any
securities of another issuer which may be held or owned by the Corporation and
to make, execute and deliver any waiver, proxy or consent with respect to any
such securities.
Section 6. Depositories. Funds of the Corporation not otherwise employed
shall be deposited from time to time in such banks or other depositories as
either the Board of Directors or the President or the Treasurer may select or
approve.
Section 7. Signing of Checks, Notes, etc. In addition to and cumulative
of, but in nowise limiting or restricting, any other provision or provisions of
these Bylaws which confer any authority relative thereto, all checks, drafts and
other orders for the payment of money or moneys out of funds of the Corporation
and all notes and other evidences of indebtedness of the Corporation shall be
signed on behalf of the Corporation, in such manner, and by such officer or
officers, person or persons, as shall from time to time be determined or
designated by or pursuant to resolution or resolutions of the Board of
Directors; provided, however, that if, when, after and as authorized or provided
for by resolution or resolutions of the Board of Directors the signature or
signatures of any such officer or officers, person or persons, may be facsimile
or facsimiles, engraved or printed, and shall have the same force and effect and
bind the Corporation as though such officer or officers, person or persons, had
signed the same personally, and, in event of the death, disability, removal or
resignation of any such officer or officers, person or persons, if the Board of
Directors shall so determine or provide, as though and with the same effect as
if such death, disability, removal or resignation had not occurred.
Section 8. Persons. Wherever used or appearing in these Bylaws, pronouns
of the masculine gender shall include the persons of the female sex as well as
the neuter gender and the singular shall include the plural wherever
appropriate.
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Section 9. Laws and Statutes. Wherever used or appearing in these Bylaws,
the words "law" or "laws" or "statute" or "statutes," respectively, shall mean
and refer to laws and statutes, or a law or a statute, of the State of Texas, to
the extent only that such is or are expressly applicable, except where otherwise
expressly stated or the context requires that such words not be so limited.
Section 10. Headings. The headings of the Articles and Sections of these
Bylaws are inserted for convenience of reference only and shall not be deemed to
be a part thereof or used in the construction or interpretation thereof.
8
<PAGE>
ARTICLE VIII.
AMENDMENTS
These Bylaws may, from time to time, be added to, changed, altered,
amended or repealed or new Bylaws may be made or adopted by the affirmative vote
of at least a majority of the Directors present at any annual or regular or
special meeting of the Board of Directors.
WITNESS the signature of its duly authorized secretary effective this 26th
day of August, 1997.
/s/ Michael L. Gayler
------------------------------
MICHAEL L. GAYLER, Secretary
9
<PAGE>
ARTICLES OF INCORPORATION
OF
PACE U.K. HOLDING CORPORATION
I, the undersigned natural person, over the age of eighteen (18) years
and a citizen of the State of Texas, acting as incorporator of a corporation
under the Texas Business Corporation Act, hereby adopt the following Articles
of Incorporation for such corporation.
ARTICLE ONE.
The name of the corporation is PACE U.K. HOLDING CORPORATION.
ARTICLE TWO.
The corporation shall have a perpetual existence.
ARTICLE THREE.
The purposes for which the corporation is organized are the
transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE FOUR.
The aggregate number of shares which the corporation shall have
authority to issue is 1,000,000 shares of the par value of $0.01 each.
ARTICLE FIVE.
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE SIX.
The corporation may acquire its own shares and may reissue such shares
as provided by law.
ARTICLE SEVEN.
The address of its initial registered office is 515 Post Oak
Boulevard, Suite 300, Houston, Texas 77027 and the name of its initial
registered agent at such address is Jeffry B. Lewis.
ARTICLE EIGHT.
The number of Directors shall be fixed by the bylaws of the
corporation, and until changed by the bylaws, the number of directors
constituting the Board of Directors is one and the name and address of the
person who is to serve
<PAGE>
as the initial Director until the first annual meeting of the shareholders or
until his successor is elected and qualified is:
Allen J. Becker
515 Post Oak Boulevard
Suite 300
Houston, Texas 77027
ARTICLE NINE.
The corporation may enter into contracts or transact business with one
or more of its directors or officers, or with any corporation, firm or
association in which any of its directors or officers are stockholders,
directors, officers, members, employees or otherwise interested; and no such
contract or other transaction shall be void or voidable or otherwise affected
by reason of such directorship or office in the corporation or such interest in
such other firm, corporation or association, notwithstanding that a director or
directors having such interest are present and counted in determining the
existence of a quorum at a meeting of the Board of Directors of the
corporation, and notwithstanding that the vote of such director or directors
shall have been necessary to authorize, approve, ratify, or otherwise obligate
the corporation upon such contract or transaction, provided that the fact of
such interest shall be disclosed or otherwise known to the Board of Directors,
or a majority thereof at the meeting of the Board of Directors which acts upon
or in reference to such contract or transaction; nor shall any director or
officer be liable to account to the corporation for any profits realized by or
from or through any such transaction or contract of the corporation by reason
of such directorship, office or interest, except as otherwise provided in the
bylaws of the corporation.
ARTICLE TEN.
The name and address of the incorporator is:
Michael F. Rogers
333 Clay Ave., Suite 800
Houston, Texas 77002
ARTICLE ELEVEN.
The corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
ARTICLE TWELVE.
To the fullest extent permitted by applicable law, no director of the
corporation shall be liable to the corporation or any of its shareholders for
monetary damages for an act or omission in the director's capacity as a
director. To the fullest extent permitted by applicable law, the corporation
shall indemnify and advance expenses, prior to the final disposition of the
proceeding, to a director, and may, upon the determination of the Board of
Directors, indemnify and advance expenses, prior to the final disposition of
the proceeding, to an officer, employee, agent or person who is or was serving
at the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, who was, is or is threatened
to be made a defendant or respondent in any proceeding.
ARTICLE THIRTEEN.
The right of cumulative voting of shares is hereby expressly
prohibited.
-2-
<PAGE>
ARTICLE FOURTEEN.
No shareholder of the corporation shall have any preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right, option or
warrant to subscribe to or acquire shares, whether now or hereafter authorized,
which may at any time be issued, sold or offered for sale by the corporation.
IN WITNESS WHEREOF, I have signed this instrument on this 26th day of
January, 1993.
Incorporator:
/s/ Michael R. Rogers
---------------------
Michael F. Rogers
-3-
<PAGE>
BYLAWS
OF
PACE U.K. HOLDING CORPORATION
ARTICLE I
Section 1. The registered office of the corporation shall be located
in Harris County, Texas.
Section 2. The corporation may also have offices at such other places
both within or without the State of Texas as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of
directors shall be held at such time and place, within or without the State of
Texas, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with
or without cause at any meeting of shareholders by majority vote of the shares
then entitled to vote, provided that notice of the proposed action is given in
the notice or waiver of notice of such meeting. Election of Directors shall be
by plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may
be held within or without the State of Texas. The annual meeting of the Board
of Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
<PAGE>
ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors
and shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be
issued f or lawful consideration (not less than par value) and to such persons
as the Board of Directors may determine from time to time. In the absence of
fraud, the judgment of the Board of Directors as to the value received for
shares issued shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article
2.02-1 of the Texas Business Corporation Act, any person who is or was a
director, officer, agent or employee of the corporation.
APPROVED by the initial director this day of January, 1993.
ATTEST
\s\ Jeffry B. Lewis,
- --------------------------
Jeffry B. Lewis, Secretary
-2-
<PAGE>
Articles of Incorporation
(Pursuant To NRS 78)
STATE OF NEVADA
Secretary of State
No. Dean Heller
1. NAME OF CORPORATION: PEC, INC.
2. RESIDENT AGENT: Griffin Corporate Services Attn: Janice C. George
Street Address: 1325 Airmotive Way, Suite 130, Reno 89502
3. SHARES:
Number of shares with par value: 1,000 Par Value: $.01 Number of
share without par value: 0
4. GOVERNING BOARD: Shall be styled as Directors
The FIRST BOARD OF DIRECTORS shall consist of 1 members and the names and
address are as follows:
Allen J. Becker
515 Post Oak Blvd., Suite 300
Houston, Texas 77027
5. PURPOSE:
6. OTHER MATTERS:
7. SIGNATURES OF INCORPORATORS:
Janice C. George
1325 Airmotive Way
Reno, NV 89502
/s/ Janice C. George
-------------------------
Signature
State of Nevada County of Washoe
This instrument was acknowledged before me on
12/20/96, by /s/ Janice C. George
-------- --------------------
as incorporator of PEC, INC.
/s/ Denise M. Peck
---------------------
Notary Public
(SEAL)
8. CERTIFICATE OF ACCEPTANCE APPOINTMENT OF RESIDENT AGENT
Griffin Corporate Services hereby accepts appointment as Resident Agent for
the above named corporation.
/s/ Janice C. George 12/20/96
------------------------------- ---------------
Signature of Resident Agent (Assistant Secretary Date
Janice C. George
<PAGE>
BYLAWS
OF
PEC, INC.
(A NEVADA CORPORATION)
December 31, 1996
<PAGE>
ARTICLE I
OFFICES
Section 1. The registered office shall be in Reno, Nevada or in such
other city in the State of Nevada as the board of directors may from time to
time determine.
Section 2. The corporation may also have offices at such other
places both within and without the State of Nevada as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All annual and special meetings of the stockholders may
be held at such time and place within or without the State of Nevada as shall be
stated in the notice of the meeting, or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held on such
date and at such time as shall be determined by the Board of Directors. At each
annual meeting the stockholders shall elect by a plurality vote a board of
directors and transact such other business as may properly be brought before the
meeting.
Section 3. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 4. Notices of meetings shall be in writing and signed by the
president or a vice president, or the secretary, or an assistant secretary, or
by such other person or persons as the directors shall designate. Such notice
shall state the purpose or purposes for which the meeting is called and the time
when and the place where it is to be held. A copy of such notice shall be either
delivered personally to or shall be mailed, postage prepaid, to each stockholder
of record entitled to vote at such meeting not less than ten nor more than sixty
days before such meeting. If mailed, it shall be directed to a stockholder at
his address as it appears upon the records of the corporation and upon
1
<PAGE>
such mailing of any such notice, the service thereof shall be complete, and the
time of the notice shall begin to run from the date upon which such notice is
deposited in the mail for transmission to such stockholder. Personal delivery of
any such notice to any officer of a corporation or association, or to any member
of a partnership shall constitute delivery of such notice to such corporation,
association or partnership. In the event of the transfer of stock after delivery
or mailing of the notice of and prior to the holding of the meeting it shall not
be necessary to deliver or mail notice of the meeting to the transferee.
Section 5. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 6. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
articles of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 7. When a quorum is present or represented at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the articles of incorporation a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 8. At any meeting of the stockholders, any stockholder may
be represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two or
more persons to act as proxies, a majority of such persons present at the
meeting, or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be valid after the expiration
2
<PAGE>
of six months from the date of its execution, unless coupled with an interest,
or unless the person executing it specifies therein the length of time for which
it is to continue in force, which in no case shall exceed seven years from the
date of its execution. Subject to the above, any proxy duly executed is not
revoked and continues in full force and effect until an instrument revoking it
or a duly executed proxy bearing a later date is filed with the secretary of the
corporation.
Section 9. Any action, which may be taken by the vote of the
stockholders at a meeting, may be taken without a meeting if authorized by the
written consent of stockholders holding at least a majority of the voting power,
unless the provisions of the statutes or of the articles of incorporation
require a greater proportion of voting power to authorize such action in which
case such greater proportion of written consents shall be required.
ARTICLE III
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. The number of directors which shall constitute the whole
board of directors shall not be less than one (1). Within the limits above
specified, the number of directors which shall constitute the whole board of
directors shall be determined by resolution of the board of directors or by the
stockholders at any annual or special meeting or otherwise pursuant to action of
the stockholders. Directors need not be stockholders. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article III, and each director elected shall hold office until the
annual meeting next after his election and until his successor is duly elected
and qualified, or until his death or retirement or until he resigns or is
removed in the manner hereinafter provided. Directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
and entitled to vote on the election of directors at any annual or special
meeting of stockholders. Such election shall be by written ballot.
Section 2. Any director may be removed, either with or without
cause, at any time, by the affirmative vote by written ballot of a majority in
voting interest of the stockholders of record of the corporation entitled to
vote, given at an annual meeting or at a special meeting of the stockholders
called for that purpose. The vacancy in the board of directors caused by any
such removal shall be filled by the stockholders at such meeting or, if not so
filled, by the board of directors as provided in Section 3 of this Article III.
Section 3. Vacancies, including those caused by an increase in the
number of directors, may be filled by a majority of the remaining directors
though less than a quorum. When one or more directors shall give notice
3
<PAGE>
of his or their resignation to the board, effective at a future date, the board
shall have power to fill such vacancy or vacancies to take effect when such
resignation or resignations shall become effective, each director so appointed
to hold office during the remainder of the term of office of the resigning
director or directors.
Section 4. The business of the corporation shall be managed by its
board of directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the articles of
incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
Section 5. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Nevada.
Section 6. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held
without notice at such time and place as shall from time to time be determined
by the board.
Section 8. Special meetings of the board of directors may be called
by the president or secretary on the written request of two directors. Written
notice of special meetings of the board of directors shall be given to each
director at least three days before the date of the meeting.
Section 9. A majority of the board of directors, at a meeting duly
assembled, shall be necessary to constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the articles of
incorporation. Any action required or permitted to be taken at a meeting of the
directors may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the directors entitled to vote
with respect to the subject matter thereof.
4
<PAGE>
COMMITTEES OF DIRECTORS
Section 10. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation, which, to the extent
provided in the resolution, shall have and may exercise the powers of the board
of directors in the management of the business and affairs of the corporation,
and may have power to authorize the seal of the corporation to be affixed to all
papers on which the corporation desires to place a seal. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors.
Section 11. The committees shall keep regular minutes of their
proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever all parties entitled to vote at any meeting,
whether of directors or stockholders, consent, either by a writing on the
records of the meeting or filed with the secretary, or by presence at such
meeting and oral consent entered on the minutes, or by taking part in the
deliberations at such meeting without objection, the doings of such meeting
shall be as valid as if had at a meeting regularly called and noticed, and at
such meeting any business may be transacted which is not excepted from the
written consent or to the consideration of which no objection
5
<PAGE>
for want of notice is made at the time, and if any meeting be irregular for want
of notice or of such consent, provided a quorum was present at such meeting, the
proceedings of said meeting may be ratified and approved and rendered likewise
valid and the irregularity or defect therein waived by a writing signed by all
parties having the right to vote at such meetings; and such consent or approval
of stockholders may be by proxy or attorney, but all such proxies and powers of
attorney must be in writing.
Section 3. Whenever any notice whatever is required to be given
under the provisions of the statutes, of the articles of incorporation or of
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a secretary and a treasurer. Any
person may hold two or more offices.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint vice presidents,
assistant secretaries and assistant treasurers and such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise shall be filled by the
board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation, and shall see that all orders and resolutions of the board of
directors are carried into effect.
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Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE PRESIDENT
Section 8. The vice president, if there be one (or in the event
there be more than one, the vice presidents in the order designated, or in the
absence of any designation, then in the order of their election), shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties as the board of
directors may from time to time prescribe.
THE SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the treasurer or an assistant
secretary.
THE ASSISTANT SECRETARY
Section 10. In the absence of the Secretary or in the event of his
inability or refusal to act, the Assistant Secretary, if any (or, if there be
more than one, the Assistant Secretaries in the order designated or, in the
absence of any designation, then in the order of their election), shall perform
the duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors, the President or
the Secretary may from time to time prescribe.
THE TREASURER
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit
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all moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors taking proper vouchers for such disbursements,
and shall render to the president and the board of directors, at the regular
meetings of the board, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every stockholder shall be entitled to have a
certificate, signed by the president or a vice president and the secretary or an
assistant secretary of the corporation, certifying the number of shares owned by
him in the corporation. If the corporation is authorized to issue shares of more
than one class or more than one series of any class, there shall be set forth
upon the face or back of the certificate, or the certificate shall have a
statement that the corporation will furnish to any stockholders upon request and
without charge, a full or summary statement of the designations, preferences and
relative, participating, optional or other special rights of the various classes
of stock or series thereof and the qualifications, limitations or restrictions
of such rights, and, if the corporation shall be authorized to issue only
special stock, such certificate shall set forth in full or summarize the rights
of the holders of such stock.
Section 2. Whenever any certificate is countersigned or otherwise
authenticated by a transfer agent or transfer clerk, and by a registrar, then a
facsimile of the signatures of the officers or agents of the corporation may be
printed or lithographed upon such certificate in lieu of the actual signatures.
In case any officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such certificate or
certificates shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the corporation, such certificate or
certificates may
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nevertheless be adopted by the corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates, or whose
facsimile signature or signatures shall have been used thereon, had not ceased
to be an officer or officers of such corporation.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof; require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The directors may prescribe a period not exceeding sixty
days prior to any meeting of the stockholders during which no transfer of stock
on the books of the corporation may be made, or may fix a day not more than
sixty days prior to the holding of any such meeting as the day as of which
stockholders entitled to notice of and to vote at such meeting shall be
determined; and only stockholders of record on such day shall be entitled to
notice or to vote at such meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any
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equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof;
except as otherwise provided by the laws of Nevada.
ARTICLE VII
INDEMNIFICATION
Section 1. The Corporation shall indemnify persons who are or were a
director or officer of the Corporation both in their capacities as directors and
officers of the Corporation and, if serving at the request of the Corporation as
a director, officer, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, trust, partnership, joint venture, sole
proprietorship, employee benefit plan or other enterprise, in each of those
capacities, against any and all liability and reasonable expense that may be
incurred by them in connection with or resulting from (a) any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (collectively, a "Proceeding"), (b)
an appeal in such a Proceeding, or (c) any inquiry or investigation that could
lead to such a Proceeding, all to the full extent permitted by Section 78.751 of
the Nevada General Corporation Law. The Corporation shall pay or reimburse, in
advance of the final disposition of the Proceeding, to all persons who are or
were a director or officer of the Corporation all reasonable expenses incurred
by such person who was, is or is threatened to be made a named defendant or
respondent in a Proceeding to the full extent permitted by Section 78.751 of the
Nevada General Corporation Law. The Corporation may indemnify persons who are or
were an employee or agent (other than a director or officer) of the Corporation,
or persons who are not or were not employees or agents of the Corporation but
who are or were serving at the request of the Corporation as a director,
officer, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, trust, partnership, joint venture, sole proprietorship,
employee benefit plan or other enterprise (collectively, along with the
directors and officers of the Corporation, such persons are referred to herein
as "Corporate Functionaries") against any and all liability and reasonable
expense that may be incurred by them in connection with or resulting from (a)
any Proceeding, (b) an appeal in such a Proceeding, or (c) any inquiry or
investigation that could lead to such a Proceeding, all to the full extent
permitted by Section 78.751 of the Nevada General Corporation Law. The rights of
indemnification provided for in this Article VII shall be in addition to all
rights to which any Corporate Functionary may be entitled under any agreement or
vote of shareholders or as a matter of law or otherwise.
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Section 2. The Corporation may purchase or maintain insurance on
behalf of any Corporate Functionary against any liability asserted against him
and incurred by him in such a capacity or arising out of his status as a
Corporate Functionary, whether or not the Corporation would have the power to
indemnify him or her against the liability under the Nevada General Corporation
Law or these Bylaws; provided, however, that if the insurance or other
arrangement is with a person or entity that is not regularly engaged in the
business of providing insurance coverage, the insurance or arrangement may
provide for payment of a liability with respect to which the Corporation would
not have the power to indemnify the person only if including coverage for the
additional liability has been approved by the shareholders of the Corporation.
Without limiting the power of the Corporation to procure or maintain any kind of
insurance or arrangement, the Corporation may, for the benefit of persons
indemnified by the Corporation, (i) create a trust fund, (ii) establish any form
of self-insurance, (iii) secure its indemnification obligation by grant of any
security interest or other lien on the assets of the Corporation, or (iv)
establish a letter of credit, guaranty or surety arrangement. Any such insurance
or other arrangement may be procured, maintained or established within the
Corporation or its affiliates or with any insurer or other person deemed
appropriate by the Board of Directors of the Corporation regardless of whether
all or part of the stock or other securities thereof are owned in whole or in
part by the Corporation. In the absence of fraud, the judgment of the Board of
Directors of the Corporation as to the terms and conditions of such insurance or
other arrangement and the identity of the insurer or other person participating
in an arrangement shall be conclusive, and the insurance or arrangement shall
not be voidable and shall not subject the directors approving the insurance or
arrangement to liability, on any ground, regardless of whether directors
participating in approving such insurance or other arrangement shall be
beneficiaries thereof.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the articles of incorporation, if any, may be
declared by the board of directors at any regular or special meeting pursuant to
law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the articles of incorporation.
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Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserves in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporation shall have a seal which may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE IX
AMENDMENTS
Section 1. These Bylaws may be altered or repealed, or new Bylaws
may be adopted, at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration or repeal be contained in the notice of
such special meeting, at which a quorum is present, by the affirmative vote of a
majority of the shares or the directors, whichever the case may be.
I, THE UNDERSIGNED, being the secretary of PEC, Inc., a Nevada corporation (the
"Company"), DO HEREBY CERTIFY the foregoing to be the Bylaws of the Company, as
adopted by the written consent of the sole director of the Company on December
31, 1996.
/s/Jeffry B. Lewis, Secretary
-------------------------------
Jeffry B. Lewis, Secretary
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CERTIFICATE OF INCORPORATION
OF
POLARIS AMPHITHEATER CONCERTS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is Polaris Amphitheater Concerts, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19805, County of New Castle; and the name of the
registered agent of the corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is one hundred. The par value of each of such shares is
one cent. All such shares are one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Deborah Goldman-Levi 150 East 58th Street, 19th Floor
New York, NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
ss.291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
ss.279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
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EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The
number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the
Bylaws. The phrase "whole Board" and the phrase "total number of
directors" shall be deemed to have the same meaning, to wit, the
total number of directors which the corporation would have if there
were no vacancies. No election of directors need be by written
ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance
with the provisions of ss.109 of the General Corporation Law of the
State of Delaware, and, after the corporation has received any
payment for any of its stock, the power to adopt, amend, or repeal
the Bylaws of the corporation may be exercised by the Board of
Directors of the corporation; provided, however, that any provision
for the classification of directors of the corporation for staggered
terms pursuant to the provisions of subsections (d) of ss.141 of the
General Corporation Law of the State of Delaware shall be set forth
in an initial Bylaw or in a Bylaw adopted by the stockholders
entitled to vote of the corporation unless provisions for such
classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of
stockholders. Whenever the corporation shall be authorized to issue
more than one class of stock, no outstanding share of any class of
stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the
right to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of ss.242 of the
General Corporation Law of the State of Delaware shall otherwise
require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to
vote upon the increase to decrease in the number of authorized
shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of ss.102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of ss.145 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
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 all
rights at any time conferred upon the
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stockholders of the corporation by this certificate of incorporation are granted
subject to the provisions of this Article ELEVENTH.
Signed on April 22, 1997
/s/ Deborah Goldman-Levi
----------------------------------
Deborah Goldman-Levi, Incorporator
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BY-LAWS
OF
POLARIS AMPHITHEATER CONCERTS, INC.
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be established
and maintained at and shall be the registered agent of the Corporation in charge
hereof.
1.2 Other Offices: The corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the corporation may
require, provided, however, that the corporation's books and records shall be
maintained at such place within the continental United States as the Board of
Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An annual
meeting of stockholders shall be held each year within five months after the
close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called by
the President or by the Chairman of the Board of Directors, or at the request in
writing by stockholders of record owning at least fifty (50%) percent of the
issued and outstanding voting shares of common stock of the corporation.
2.5 Notice of Meetings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders' meeting the Secretary shall
give to each stockholder of record entitled to vote at such meeting, written
notice, served personally by mail or by telegram, 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. Such notice, if mailed shall be deemed
to be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it appears
on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum. The withdrawal of any shareholder
after the commencement of a meeting shall have no effect on the existence of a
quorum, after a quorum has been established at such meeting.
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority
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of voting stockholders, present in person or by proxy, may adjourn the meeting
from time to time without notice other than announcement at the meeting. In the
absence of a quorum, the officer presiding thereat shall have power to adjourn
the meeting from time to time until a quorum shall be present. Notice of any
adjourned meeting, other than announcement at the meeting, shall not be required
to be given except as provided in paragraph (d) below and except where expressly
required by law.
(c) At any adjourned session at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President, shall preside
at meetings of the stockholders. The Secretary shall act as secretary of the
meeting or if he is not present, then the presiding officer may appoint a person
to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise provided by
the Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
voting stock standing in his name on the books of the corporation on the record
date for the meeting. Except as otherwise provided by these by-laws, all
elections and questions shall be decided by the vote of a majority in interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting.
2.9 Proxies: Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before or
at the meeting; or if one or both inspectors so appointed shall refuse to serve
or shall not be present, such appointment shall be made by the officer presiding
at the meeting.
2.11 List of Stockholders: (a) At least ten days before every
meeting of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of at least
ten days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.12 Procedure at Stockholders' Meetings: Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure
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at every meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meeting. Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting, may be taken without a meeting, without prior notice
and without a vote, if a consent 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. 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 III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs of the
corporation shall be managed by its Board of Directors which may exercise all
the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors: The
number of directors which shall constitute the Board of Directors shall be ( )
unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not be
stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any director may
resign his office at any time by delivering his resignation in writing to the
Chairman of the Board or to the President. It will take effect at the time
specified therein or, if no time is specified, it will be effective at the time
of its receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any
time by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of Directors
may hold their meetings, both regular and special, either within or outside the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required. If
the date designated for any regular meeting be a legal holiday, then the meeting
shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of the stockholders for
the election of officers and the transaction of such other business as may come
before it. If such meeting is held at the place of the stockholders' meeting, no
notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or at
the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board
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of Directors by mailing the same at least three days before the meeting or by
telegraphing, telexing, or delivering the same not later than the date before
the meeting.
Unless required by law, such notice need not include a statement of
the business to be transacted at, or the purpose of, any such meeting. Any and
all business may be transacted at any meeting of the Board of Directors. No
notice of any adjourned meeting need be given. No notice to or waiver by any
director shall be required with respect to any meeting at which the director is
present.
3.5 Quorum and Action: Unless provided otherwise by law or by the
Certificate of Incorporation or these by-laws, a majority of the Directors shall
constitute a quorum for the transaction of business; but if there shall be less
than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. The vote of a majority of the Directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The President,
or, in his absence a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officer may appoint a
secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3 .8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution or
resolutions passed by a majority of Directors designate one or more committees,
each of such committees to consist of one or more Directors of the Corporation,
for such purposes as the Board shall determine. 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.
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected officers of
the corporation shall be a President, a Treasurer and a Secretary, and such
other officers as the Board of Directors shall deem advisable. The officers
shall be elected by the Board of Directors at its annual meeting following the
annual meeting of the stockholders, to serve at the pleasure of the Board or
otherwise as shall be specified by the Board at the time of such election and
until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time,
and from time to time, additional officers or agents with such duties as it may
deem necessary or desirable. Such additional officers shall serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
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(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time has been specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be removed
at any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the Directors then
in office.
4.3 Duties: (a) President: The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall supervise and control all the business and affairs of the
corporation. He shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. He shall see that all orders and resolutions of
the Board of Directors are carried into effect (unless any such order or
resolution shall provide otherwise), and in general shall perform all duties
incident to the office of president and such other duties as may be prescribed
by the Board of Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and custody
of and be responsible for all funds and securities of the Corporation; (2)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever; (3) deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by
resolution of the Board of Directors; and (4) in general perform all duties
incident to the office of treasurer and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors. He shall,
if required by the Board of Directors, give a bond for the faithful discharge of
his duties in such sum and with such surety or sureties as the Board of
Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of the
meetings of the stockholders, the Board of Directors, and all committees, if
any, of which a secretary shall not have been appointed, in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these by-laws and as required by law; (3 ) be custodian
of the corporate records and of the seal of the corporation and see that the
seal of the corporation is affixed to all documents, the execution of which on
behalf of the corporation under its seal, is duly authorized; (4) keep a
register of the post office address of each stockholder which shall be furnished
to the Secretary by such stockholder; (5) have general charge of stock transfer
books of the Corporation; and (6) in general perform all duties incident to the
office of secretary and such other duties as from time to time may be assigned
to him by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) Every holder of stock in the corporation
shall be entitled to have a certificate signed by, or in the name of, the
corporation by the President and by the Treasurer or the Secretary, certifying
the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with
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<PAGE>
the same effect as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the holder
of such certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the corporation's books. The corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof except as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be made
on the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The
corporation may maintain one or more transfer offices or agencies where stock of
the corporation shall be transferable. The corporation may also maintain one or
more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record:
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall be not more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination of the stockholders. A determination of
stockholders of record entitled to notice or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
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ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise order,
the President, the Secretary or the Treasurer shall have full power and
authority, on behalf of the corporation, to attend, act and vote at any meeting
of the stockholders of any corporation in which the corporation may hold stock,
and at such meeting to exercise any or all rights and powers incident to the
ownership of such stock, and to execute on behalf of the corporation a proxy or
proxies empowering another or others to act as aforesaid. The Board of Directors
from time to time may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation: (a) Any of the following officers, to wit: the President and the
Treasurer shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidence of indebtedness, or other securities now or hereafter standing in the
name of or owned by the corporation, and to make, execute and deliver, under the
seal of the corporation, any and all written instruments of assignment and
transfer necessary or proper to effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come, shall be
entitled, without further inquiry or investigation and regardless of the date of
such certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the corporation, and that with respect to such securities the authority of
these provisions of the by-laws and of such officers is still in full force and
effect.
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form and
shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the time
place or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the holding
thereof, or actual attendance at the meeting in person or, in the case of any
stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving
of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its directors,
officers and employees to the fullest extent allowed by law, provided, however,
that it shall be within the discretion of the Board of Directors whether to
advance any funds in advance of disposition of any action, suit or proceeding,
and provided further that nothing in this section 7.4 shall be deemed to obviate
the necessity of the Board of Directors to make any determination that
indemnification of the director, officer or employee is proper under the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.
7.5 Fiscal Year: Except as from time to time otherwise determined by
the Board of Directors,
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<PAGE>
the fiscal year of the corporation shall end on
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<PAGE>
ARTICLES OF INCORPORATION
OF
PTG-FLORIDA, INC.
ARTICLE I
The name of the corporation is PTG-FLORIDA, INC. (hereinafter called the
"Corporation").
ARTICLE II
The purpose for which the Corporation is formed is to engage in any lawful
act or activity for which corporations may be organized under the laws of the
State of Florida.
ARTICLE III
The capital stock authorized, the par value thereof, and the
characteristics of such stock shall be as follows:
Number of Shares Par Value Class of
Authorized Per Share Stock
---------- --------- -----
75,000 $.01 common
ARTICLE IV
The address of the Corporation's registered office in the State of Florida
is 502 E. Park Avenue, Tallahassee, Florida 32301, City of Tallahassee, County
of Leon, and the name of its registered agent at such address is Corporation
Information Services, Inc.
ARTICLE V
The Board of Directors of the Corporation shall consist of at least one
director, with the exact number to be fixed from time to time in the manner
provided in the Corporation's bylaws. The number of directors constituting the
initial Board of Directors is two, and the names and addresses of the members of
the initial Board of Directors, who are to serve as the Corporation's directors
until their successors are duly elected and qualified are:
Miles C. Wilkin
4543 Post Oak Place Drive - #200
Houston, Texas 77027
John A. Rubey
4543 Post Oak Place Drive - #200
Houston, Texas 77027
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ARTICLE VI
The name of the Incorporator is Oscar de la Guardia and the address of the
Incorporator is 1221 Brickell Avenue, Miami, Florida 33131.
ARTICLE VII
This Corporation shall indemnify and shall advance expenses on behalf of
its officers and directors to the fullest extent permitted by law in existence
either now or hereafter.
IN WITNESS WHEREOF, the undersigned, being the Incorporator named above,
for the purpose of forming a corporation pursuant to the Florida General
Corporation Act of the State of Florida has signed these Articles of
Incorporation this 19th day of Sept., 1988.
/s/ Oscar de la Guardia
------------------------
Oscar de la Guardia
Incorporator
STATE OF FLORIDA )
) ss:
COUNTY OF DADE )
BEFORE ME, the undersigned authority, personally appeared Oscar de la
Guardia, to me known to be the person described in and who executed the
foregoing Articles of Incorporation, who, after being duly sworn under oath,
acknowledged before me that said person executed the same for the purpose
therein expressed.
WITNESS my hand and official seal in the State and County aforesaid, this
19th day of September 1988.
/s/ illegible
-------------------------
Notary Public
My Commission Expires:
ACCEPTANCE OF APPOINTMENT OF REGISTERED AGENT
The undersigned, having been named the Registered Agent of PTG - FLORIDA, INC.,
hereby accepts such designation and is familiar with, and accepts, the
obligations as provided in Section 325 of the Florida General Corporation Act.
Corporation Information
Services, Inc.
By: /s/ illegible
---------------------
Registered Agent
DATED: September 20, 1988.
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<PAGE>
PTG-FLORIDA, INC.
BYLAWS
ARTICLE ONE
OFFICES
Section 1. Registered Office. The registered office of PTG-FLORIDA, INC.,
a Florida corporation (the "Corporation"), shall be located in the City of
Tallahassee, State of Florida.
Section 2. Other Offices. The Corporation may also have offices at such
other places, either within or without the State of Florida, as the Board of
Directors of the Corporation (the "Board of Directors") may from time to time
determine or as the business of the Corporation may require.
ARTICLE TWO
MEETINGS OF SHAREHOLDERS
Section 1. Place. All annual meetings of shareholders shall be held at
such place, within or without the State of Florida, as may be designated by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof. Special meetings of shareholders may be held at such
place, within or without the State of Florida, and at such time as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Time of Annual Meeting. Annual meetings of shareholders shall
be held on such date and at such time fixed, from time to time, by the Board of
Directors, provided, that there shall be an annual meeting held every calendar
year at which the shareholders shall elect a board of directors and transact
such other business as may properly be brought before the meeting.
Section 3. Call of Special Meetings. Special meetings of the shareholders
may be called by the President, the Board of Directors or by the Secretary on
the written request of the holders of not less than one-tenth of all shares
entitled to vote at the meeting.
Section 4. Conduct of Meetings. The Chairman of the Board (or in his
absence, the President or such other designee of the Chairman of the Board)
shall preside at the annual and special meetings of shareholders and shall be
given full discretion in establishing the rules and procedures to be followed in
conducting the meetings, except as otherwise provided by law or in these Bylaws.
Section 5. Notice and Waiver of Notice. Written or printed notice stating
the place, day and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than sixty (60) days before the day of the meeting,
either personally or by first-class mail, by or at the direction of the
President, the Secretary, or the officer or person calling the meeting, to each
shareholder of record entitled to vote at such meeting. If the notice is mailed
at least thirty (30) days before the date of the meeting, it may be done by a
class of United States mail other than first-class. If mailed, such notice shall
be deemed to be delivered when deposited in the United States mail addressed to
the shareholder at his address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. If a meeting is adjourned to another
time and/or place, and if an announcement of the adjourned time and/or place is
made at the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the Board of Directors, after adjournment, fixes a new record
date for the adjourned meeting. Notice need not be given to any shareholder who
submits a written waiver of notice by him before or after the time stated
therein. Attendance of a person at a meeting of shareholders shall constitute a
waiver of
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<PAGE>
notice of such meeting, except when a shareholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the shareholders need be specified in any written
waiver of notice.
Section 6. Business of Special Meeting. Business transacted at any special
meeting shall be confined to the purposes stated in the notice thereof.
Section 7. Quorum. The holders of a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at meetings
of shareholders except as otherwise provided in the Corporation's articles of
incorporation (the "Articles of Incorporation"). If, however, a quorum shall not
be present or represented at any meeting of the shareholders, the shareholders
present in person or represented by proxy shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted that might have been transacted at the meeting as originally notified
and called. The shareholders present at a duly organized meeting may continue to
transact business notwithstanding the withdrawal of some shareholders prior to
adjournment, but in no event shall a quorum consist of the holders of less than
one-third (1/3) of the shares entitled to vote and thus represented at such
meeting.
Section 8. Required Vote. The vote of the holders of a majority of the
shares entitled to vote and represented at a meeting at which a quorum is
present shall be the act of the Corporation's shareholders, unless the vote of a
greater number is required by law, the Articles of Incorporation, or these
Bylaws.
Section 9. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to vote on each matter submitted to a vote at a meeting of
shareholders, except to the extent that the voting rights of the shares of any
class are limited or denied by the Articles of Incorporation or the Florida
General Corporation Act.
Section 10. Proxies. A shareholder may vote in person or by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact. No
proxy shall be valid after eleven (11) months from the date of its execution
unless otherwise provided in the proxy. Each proxy shall be revocable unless
expressly provided therein to be irrevocable, and unless otherwise made
irrevocable by law.
Section 11. Shareholder List. The officer or agent having charge of the
Corporation's stock transfer books shall make, at least ten (10) days before
each meeting of shareholders, a complete list of the shareholders entitled to
vote at such meeting or any adjournment thereof, arranged in alphabetical order,
with the address of, and the number and class and series, if any, of shares held
by each. Such list, for a period of ten (10) days prior to such meeting, shall
be subject to inspection by any shareholder at any time during the usual
business hours at the place where the meeting is to be held. Such list shall
also be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the
meeting. The original stock transfer books shall be prima facie evidence as to
who, are the shareholders entitled to examine such list or transfer book or to
vote at any such meeting of shareholders.
Section 12. Action Without Meeting. Any action required by the statutes to
be taken at a meeting of shareholders, or any action that may be taken at a
meeting of the shareholders, may be taken without a meeting or notice if a
consent 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 with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of shareholders taken at such a meeting.
Section 13. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
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<PAGE>
order to make a determination of shareholders for any other proper purposes, the
Board of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
(60) days, and, in case of a meeting of shareholders, not less than ten (10)
days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which the notice of the meeting is mailed or the date on which the
resolutions of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, except where the Board of Directors fixes a
new record date for the adjourned meeting.
Section 14. Inspectors and Judges. The Board of Directors in advance of
any meeting may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If any inspector or inspectors, or judge or judges, are not appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors or judges. In case any person who may be appointed as an inspector or
judge fails to appear or act, the vacancy may be filled by the Board of
Directors in advance of the meeting, or at the meeting by the person presiding
thereat. The inspectors or judges, if any, shall determine the number of shares
of stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots and consents, hear and determine
all challenges and questions arising in connection with the right to vote, count
and tabulate votes, ballots and consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all shareholders.
On request of the person presiding at the meeting, the inspector or inspectors
or judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by him or them, and execute a certificate of any
fact found by him or them.
ARTICLE THREE
DIRECTORS
Section 1. Number, Election and Term. The number of directors of the
Corporation shall be fixed from time to time, within the limits specified by the
Articles of Incorporation, by resolution of the Board of Directors; provided,
however, no director's term shall be shortened by reason of a resolution
reducing the number of directors. The directors-shall be elected at the annual
meeting of the shareholders, except as provided in Section 2 of this Article,
and each director elected shall hold office for the term for which he is elected
and until his successor is elected and qualified. Directors need not be
residents of the State of Florida, shareholders of the Corporation or citizens
of the United States. Any director may be removed at any time, with or without
cause, at a special meeting of the shareholders called for that purpose.
Section 2. Vacancies. A director may resign at any time by giving written
notice to the Board of Directors or the Chairman of the Board. Such resignation
shall take effect at the date of receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. Any vacancy
occurring in the Board of Directors and any directorship to be filled by reason
of an increase in the size of the Board of Directors shall be filled by the
affirmative vote of a majority of the current directors though less than a
quorum of the Board of Directors, or may be filled by an election at an annual
or special meeting of the shareholders called for that purpose. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or until the next election of one or more directors by
shareholders if the vacancy is caused by an increase in the number of directors.
Section 3. Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these Bylaws directed or required to be
exercised and done by the
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<PAGE>
shareholders.
Section 4. Place of Meetings. Meetings of the Board of Directors, regular
or special, may be held either within or without the State of Florida.
Section 5. Annual Meeting. The first meeting of each newly elected Board
of Directors shall be held, without call or notice, immediately following each
annual meeting of shareholders.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may also be held without notice at such time and at such place as shall from
time to time be determined by the Board of Directors.
Section 7. Special Meetings and Notice. Special meetings of the Board of
Directors may be called by the President and shall be called by the Secretary on
the written request of any two directors. Written notice of special meetings of
the Board of Directors shall be given to each director at least twenty-four (24)
hours before the meeting. Except as required by statute, neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting. Notices to directors shall be in writing and delivered personally or
mailed to the directors at their addresses appearing on the books of the
Corporation. Notice by mail shall be deemed to be given at the time when the
same shall be received. Notice to directors may also be given by telegram, and
shall be deemed delivered when the same shall be deposited at a telegraph office
for transmission and all appropriate fees therefor have been paid. Whenever any
notice is required to be given to any director, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be equivalent to the giving of such notice.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Section 8. Quorum and Required Vote. A majority of the directors shall
constitute a quorum for the transaction of business and the act of the majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless a greater number is required by the
Articles of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. At such adjourned meeting at which a quorum shall be
present, any business may be transacted that might have been transacted at the
meeting as originally notified and called.
Section 9. Action Without Meeting. Any action required or permitted to be
taken at a meeting of the Board of Directors or committee thereof may be taken
without a meeting if a consent in writing, setting forth the action taken, is
signed by all of the members of the Board of Directors or the committee, as the
case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
Section 10. Telephone Meetings. Directors and committee members may
participate in and hold a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meetings shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground the meeting is not lawfully called or convened.
Section 11. Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board of Directors, may designate from among its members
an executive committee and one or more other committees, each of which, to the
extent provided in such resolution, shall have and may exercise all of the
authority of the Board of Directors in the business and affairs of the
Corporation except where the action of the full Board of Directors is required
by statute. Vacancies in the membership of a committee shall be filled by the
Board of Directors at a regular or special meeting of the Board of Directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required. The designation of any such
committee and the delegation thereto
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<PAGE>
of authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law.
Section 12. Compensation of Directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 13. Chairman of the Board. The Board of Directors may, in its
discretion, choose a chairman of the board who shall preside at meetings of the
shareholders and of the directors and shall be an ex officio member of all
standing committees. The Chairman of the Board shall have such other powers and
shall perform such other duties as shall be designated by the Board of
Directors. The Chairman of the Board shall be a member of the Board of Directors
but no other officers of the Corporation need be a director. The Chairman of the
Board shall serve until his successor is chosen and qualified, but he may be
removed at any time by the affirmative vote of a majority of the Board of
Directors.
ARTICLE FOUR
OFFICERS
Section 1. Positions. The officers of the Corporation shall consist of a
President, one or more Vice Presidents, a Secretary and a Treasurer, and, if
elected by the Board of Directors by resolution, a Chairman of the Board. Any
two or more offices may be held by the same person.
Section 2. Election of Specified Officers by Board. The Board of Directors
at its first meeting after each annual meeting of shareholders shall elect a
President, one or more Vice Presidents, a Secretary and a Treasurer.
Section 3. Election or Appointment of Other Officers. Such other officers
and assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors, or, unless otherwise specified herein,
appointed by the President of the Corporation. The Board of Directors shall be
advised of appointments by the President at or before the next scheduled Board
of Directors meeting.
Section 4. Salaries. The salaries of all officers of the Corporation to be
elected by the Board of Directors pursuant to Article Four, Section 2 hereof
shall be fixed from time to time by the Board of Directors or pursuant to its
discretion. The salaries of all other elected or appointed officers of the
Corporation shall be fixed f rom time to time by the President of the
Corporation or pursuant to his direction.
Section 5. Term. The officers of the Corporation shall hold office until
their successors are chosen and qualified. Any officer or agent elected or
appointed by the Board of Directors or the President of the Corporation may be
removed, with or without cause, by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Any officers or agents appointed by the President of the Corporation
pursuant to Section 3 of this Article Four may also be removed from such officer
positions by the President, with or without cause. Any vacancy occurring in any
office of the Corporation by death, resignation, removal or otherwise shall be
filled by the Board of Directors, or, in the case of an officer appointed by the
President of the Corporation, by the President or the Board of Directors.
Section 6. President. The President shall be the Chief Executive Officer
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. In the absence of the Chairman of the Board
or in the event the Board of
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<PAGE>
Directors shall not have designated a chairman of the board, the President shall
preside at meetings of the shareholders and the Board of Directors.
Section 7. Vice Presidents. The Vice Presidents in the order of their
seniority, unless, otherwise determined by the Board of Directors, shall, in the
absence or disability of the President, perform the duties and exercise the
powers of the President. They shall perform such other duties and have such
other powers as the Board of Directors shall prescribe or as the President may
from time to time delegate.
Section 8. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the shareholders and record all the proceedings
of the meetings of the shareholders and of the Board of Directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision he shall be. He shall keep in safe custody
the seal of the Corporation and, when authorized by the Board of Directors,
affix the same to any instrument requiring it.
Section 9. Treasurer. The Treasurer shall have the custody of corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors at its regular meetings or when the
Board of Directors so requires an account of all his transactions as treasurer
and of the financial condition of the Corporation.
ARTICLE FIVE
CERTIFICATES FOR SHARES
Section 1. Issue of Certificates. The Corporation shall deliver
certificates representing all shares to which shareholders are entitled; and
such certificates shall be signed by the President or a Vice President, and the
Secretary or an Assistant Secretary of the Corporation, and may be sealed with
the seal of the Corporation or a facsimile thereof. No certificate shall be
issued for any share until the consideration therefor has been fully paid. Each
certificate representing shares shall state upon the face thereof, the name of
the Corporation, that the Corporation is organized under the laws of the State
of Florida, the name of the person to whom issued, the number and class and the
designation of the series, if any, that such certificate represents, and the par
value of each share represented by such certificate.
Section 2. Legends for Preferences and Restrictions on Transfer. Every
certificate representing shares issued by the Corporation shall set forth or
fairly summarize upon the face or back of the certificate, or shall state that
the Corporation will furnish to any shareholder upon request and without charge
a full statement of:
(a) The designations, preferences, limitations, and relative
rights of the shares of each class or series authorized to be issued.
(b) The variations in the relative rights and preferences
between the shares of each such series, if the Corporation is authorized to
issue any preferred or special class in series and so far as the same have been
fixed and determined.
(c) The authority of the Board of Directors to fix and
determine the relative rights and preferences of subsequent series.
Every certificate representing shares that are restricted as to the sale,
disposition, or transfer of such shares shall also
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<PAGE>
indicate that such shares are restricted as to transfer and there shall be set
forth or fairly summarized upon the certificate, or the certificate shall
indicate that the Corporation will furnish to any shareholder upon request and
without charge, a full statement of such restrictions. If the Corporation issues
any shares that are not registered under the Securities Act of 1933, as amended,
and registered or qualified under the applicable state securities laws, the
transfer of any such shares shall be restricted substantially in accordance with
the following legend:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED WITHOUT (1)
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE
STATE LAW, OR (2) AT HOLDER'S EXPENSE, AN OPINION (SATISFACTORY TO
THE CORPORATION) OF COUNSEL (SATISFACTORY TO THE CORPORATION) THAT
REGISTRATION IS NOT REQUIRED."
Section 3. Facsimile Signatures. The signatures of the President or a Vice
President and the Secretary or Assistant Secretary upon a certificate may be
facsimiles, if the certificate is manually signed by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer at the date of the issuance.
Section 4. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
Section 5. Transfer of Shares. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6. Registered Shareholders. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State of
Florida.
Section 7. Redemption of Control Shares. As provided by the Florida
General Corporation Act, if a person acquiring control shares of the Corporation
does not file an acquiring person statement with the Corporation, the
Corporation may redeem the control shares at fair market value at any time
during the 60 day period after the last acquisition of such control shares. If a
person acquiring control shares of the Corporation files an acquiring person
statement with the Corporation, the control shares may be redeemed by the
Corporation only if such shares are not accorded full voting rights by the
shareholders as provided by law.
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ARTICLE SIX
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the provisions
of the Articles of Incorporation.
Section 2. Reserves. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each year, unless otherwise fixed by resolution of the Board of
Directors.
Section 5. Seal. The corporate seal shall have inscribed thereon the name
and state of incorporation of the Corporation. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE SEVEN
AMENDMENTS OF BYLAWS
These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted at any meeting of the Board of Directors at which a quorum is present,
by the affirmative vote of a majority of the directors present at such meeting.
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<PAGE>
CERTIFICATE OF INCORPORATION
STOCK CORPORATION
Office of the Secretary of the State
30 Trinity Street/P.O. Box 150470/Hartford, CT 06115-04/new 1-97
1. NAME OF CORPORATION:
QN Corp.
2. TOTAL NUMBER OF AUTHORIZED SHARES:
1,000 Par Value of .01 per share
4. APPOINTMENT OF REGISTERED AGENT:
Print or type name of agent:
Corporation Service Company
Business/initial registered office address:
30 High Street
Hartford, CT 06103
Residence address:
Same
Acceptance of appointment:
by:/s/Colin Tedeschi
------------------------------
Colin Tedeschi, Assistant Secretary
6. EXECUTION:
Dated this 14th day of January 1996
PRINT OR TYPE NAME OF INCORPORATOR(S):
Colin Tedeschi
SIGNATURE(S):
/s/ Colin Tedeschi
---------------------------------
COMPLETE ADDRESS(ES):
30 High Street
Hartford, CT 06103
<PAGE>
BYLAWS
OF
QN Corp.
(a Connecticut corporation)
--------------------------------------
ARTICLE I
SHAREHOLDERS
1. SHARE CERTIFICATES. Certificates evidencing fully-paid shares of the
Corporation shall set forth thereon the statements prescribed by Section 33-676
of the Connecticut Business Corporation Act ("Business Corporation Act") and by
any other applicable provision of law, shall be signed, either manually or in
facsimile, by any two of the following officers: the President, a Vice
President, the Secretary, an Assistant Secretary, the Treasurer, an Assistant
Treasurer or by any two officers designated by the Board of Directors, and may
bear the corporate seal or its facsimile. If a person who signed, either
manually or in facsimile, a share certificate no longer holds office when the
certificate is issued, the certificate is nevertheless valid.
2. SHARE TRANSFERS. Upon compliance with any provisions restricting the
transferability of shares that may be set forth in the certificate of
incorporation, these bylaws or any written agreement in respect thereof,
transfers of shares of the Corporation shall be made only on the books of the
Corporation by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or with a transfer agent or a registrar and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon, if any. Except as may be otherwise provided by law or these
bylaws, the person in whose name shares stand on the books of the Corporation
shall be deemed the owner thereof for all purposes as regards the Corporation;
provided that whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact, if known to the Secretary of the
Corporation, shall be so expressed in the entry of transfer.
3. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders, to
demand a special meeting, to vote or to take any other action, the Board of
Directors of the Corporation may fix a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days before the meeting or action requiring a determination of shareholders. A
determination of shareholders entitled to notice of or to vote at a shareholders
meeting is effective for any adjournment of the meeting, unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than one hundred twenty days after the date fixed for the
original meeting.
4. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of shareholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares and to a holder or holders of record of
outstanding shares when the Corporation is authorized to issue only one class of
shares, and said reference is also intended to include any outstanding share or
shares and any holder or holders of record of outstanding shares of any class
upon which or upon whom the certificate of incorporation confers such rights
where there are two or more classes or series of shares or upon which or upon
whom the Business Corporation Act confers such rights notwithstanding that the
certificate of incorporation may provide for more than one class or series of
shares, one or more of which are limited or denied such rights thereunder. The
term "notice" as used herein shall mean notice as prescribed by Section 33-603
of the Business Corporation Act.
<PAGE>
5. SHAREHOLDER MEETINGS.
a. TIME. The annual meeting shall be held on the date fixed from
time to time by the directors. A special meeting shall be held on the date fixed
from time to time by the directors except when the Business Corporation Act
confers the right to call a special meeting upon the shareholders.
b. PLACE. Annual meetings and special meetings shall be held at such
place in or out of the State of Connecticut as the directors shall from time to
time fix.
c. CALL. Annual meetings may be called by the directors or the
Chairman of the Board of Directors, the President, the Secretary or by any
officer instructed by the directors or the President to call the meeting.
Special meetings may be called in like manner.
d. NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. The
Corporation shall notify shareholders of the date, time and place of each annual
and special shareholders' meeting. Such notice shall be no fewer than ten nor
more than sixty days before the meeting date. Unless the Business Corporation
Act or the certificate of incorporation requires otherwise, notice of an annual
meeting need not include a description of the purpose or purposes for which the
meeting is called. Notice of a special meeting must include a description of the
purpose or purposes for which the meeting is called. The Corporation must give
notice to shareholders not entitled to vote in any instance where such notice is
required by the provisions of the Business Corporation Act. A shareholder may
waive any notice required by the Business Corporation Act, the certificate of
incorporation or the bylaws before or after the time stated in the notice. The
waiver must be in writing, be signed by the shareholder entitled to the notice
and be delivered to the Corporation for inclusion in the minutes or filing with
the corporate records. A shareholder's attendance at a meeting waives objection
to lack of notice or defective notice of the meeting, unless the shareholder at
the beginning of the meeting objects to holding the meeting or transacting
business at the meeting; and waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
e. VOTING LIST FOR MEETING. After fixing a record date for a
meeting, the Corporation shall prepare an alphabetical list of the names of all
its shareholders who are entitled to notice of a shareholders' meeting. The list
shall be arranged by voting group, and within each voting group by class or
series of shares, and show the address of and number of shares held by each
shareholder. The shareholders' list shall be available for inspection by any
shareholder, beginning two business days after notice of the meeting is given
for which the list was prepared and continuing through the meeting, at the
Corporation's principal office or at a place identified in the meeting notice in
the city where the meeting will be held. A shareholder, his agent or attorney is
entitled on written demand to inspect and, subject to the requirements of
subsection (c) of Section 33-946 of the Business Corporation Act, to copy the
list, during regular business hours and at his expense, during the period it is
available for inspection. The Corporation shall make the shareholders' list
available at the meeting, and any shareholder, agent or attorney is entitled to
inspect the list at any time during the meeting or any adjournment.
f. CONDUCT OF MEETING. Meetings of shareholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice Chairman of the Board,
if any, the President, a Vice President, if any, or, if none of the foregoing is
in office and present and acting, by a chairman to be chosen by the
shareholders. The Secretary of the Corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but, if neither the
Secretary nor an Assistant Secretary is present, the chairman of the meeting
shall appoint a secretary of the meeting.
g. PROXY REPRESENTATION. A shareholder may appoint a proxy to vote
or otherwise act for him by signing an appointment form, either personally or by
his attorney-in-fact. An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for eleven months, unless a longer period is expressly
provided in the appointment form. An appointment of a proxy
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<PAGE>
is revocable by the shareholder, unless the appointment form conspicuously
states that it is irrevocable and the appointment is coupled with an interest.
h. SHARES HELD BY NOMINEES. The Corporation may establish a
procedure by which the beneficial owner of shares that are registered in the
name of a nominee is recognized by the Corporation as the shareholder. The
extent of this recognition may be determined in the procedure.
i. QUORUM. Unless the certificate of incorporation or the Business
Corporation Act provides otherwise, a majority of the votes entitled to be cast
on a matter by a voting group constitutes a quorum of that voting group for
action on that matter. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists on
that matter. Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting, unless a new record date is or must be set for that
adjourned meeting.
j. VOTING. Directors are elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present. If a quorum exists, action on a matter, other than the election of
directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
certificate of incorporation or the Business Corporation Act requires a greater
number of affirmative votes.
6. ACTION WITHOUT MEETING. Any action required or permitted by the
provisions of the Business Corporation Act to be taken at a shareholders'
meeting may be taken without a meeting and, except as otherwise required by the
Business Corporation Act, without prior notice, by consent in writing, setting
forth the action so taken or to be taken, signed by all of the persons who would
be entitled to vote upon such action at a meeting, or by their duly authorized
attorneys.
ARTICLE II
BOARD OF DIRECTORS
1. FUNCTIONS GENERALLY - COMPENSATION. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation managed under the direction of, a Board of Directors. The Board may
fix the compensation of directors.
2. QUALIFICATIONS AND NUMBER. A director need not be a shareholder, a
citizen of the United States or a resident of the State of Connecticut. The
initial Board of Directors shall consist of one person, which shall be the
number of directors until changed. The number of directors may be changed from
time to time by the shareholders or by the Board of Directors. The number of
directors shall never be less than one.
3. TERMS AND VACANCIES. The term of the initial director of the
Corporation expires at the first shareholders meeting at which directors are
elected. The terms of all other directors expire at the next annual shareholders
meeting following their election. A decrease in the number of directors does not
shorten an incumbent director's term. The term of a director elected to fill a
vacancy expires at the next shareholders' meeting at which directors are
elected. Despite the expiration of a director's term, he continues to serve
until his successor is elected and qualifies or until there is a decrease in the
number of directors. If a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of directors, the shareholders
or the Board of Directors may fill the vacancy; or if the directors remaining in
office constitute fewer than a quorum of the Board of Directors, they may fill
the vacancy by the affirmative vote of a majority of all the directors remaining
in office.
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<PAGE>
4. MEETINGS.
a. TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
b. PLACE. The Board of Directors may hold regular or special
meetings in or out of the State of Connecticut at such place as shall be fixed
by the Board.
c. CALL. No call shall be required for regular meetings for which
the time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice Chairman of the Board,
if any, the President or a majority of the directors in office.
d. NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Regular
meetings of the Board of Directors may be held without notice of the date, time,
place or purpose of the meeting. Written or oral notice of the time and place
shall be given for special meetings in sufficient time for the convenient
assembly of the directors thereat. The notice of any meeting need not describe
the purpose of the meeting. A director may waive any notice required by the
Business Corporation Act or by these bylaws before or after the date and time
stated in the notice. A director's attendance at or participation in a meeting
waives any required notice to him of the meeting, unless the director at the
beginning of the meeting or promptly upon his arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting. A waiver shall be in writing, signed
by the director entitled to the notice and filed with the minutes or corporate
records.
e. QUORUM AND ACTION. A quorum of the Board of Directors consists of
a majority of the number of directors prescribed in or fixed in accordance with
these bylaws. If a quorum is present when a vote is taken, the affirmative vote
of a majority of directors present is the act of the Board of Directors. The
Board of Directors may permit any or all directors to participate in a regular
or special meeting, by, or conduct the meeting through use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
f. CHAIRMAN OF THE MEETING. Meetings of the Board of Directors shall
be presided over by the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice Chairman of the
Board, if any, the President or any director chosen by the Board.
5. REMOVAL OF DIRECTORS. The shareholders may remove one or more directors
with or without cause pursuant to the provisions of Section 33-742 of the
Business Corporation Act.
6. COMMITTEES. The Board of Directors may create one or more committees
and appoint members of the Board of Directors to serve on them. Each committee
shall have two or more members, who serve at the pleasure of the Board of
Directors. The creation of a committee and the appointment of members to it
shall be approved by the greater of (a) a majority of all the directors in
office when the action is taken, or (b) the number of directors required by the
certificate of incorporation or these bylaws to take action under the provisions
of Sections 33752 of the Business Corporation Act. The provisions of Sections
33-748 to 33-752 inclusive of the Business Corporation Act, which govern
meetings, action without meetings, notice and waiver of notice, and quorum and
voting requirements, apply to committees and their members as well. To the
extent specified by the Board of Directors or these bylaws, each committee may
exercise the authority of the Board of Directors under Section 33-735 of the
Business Corporation Act except such authority as may not be delegated under the
Business Corporation Act.
7. ACTION WITHOUT MEETING. Action required or permitted by the Business
Corporation Act to be taken at a Board of Directors' meeting may be taken
without a meeting if the action is taken by all members of the Board. The action
shall be evidenced by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with the corporate
records reflecting the action taken. Action taken under
4
<PAGE>
this paragraph is effective when the last director signs the consent, unless the
consent specifies a different effective date.
ARTICLE III
OFFICERS
The Corporation shall have a President, a Secretary and such other
officers as may be deemed necessary, who may be appointed by the directors. The
same individual may simultaneously hold more than one office in the corporation,
except the office of President or Secretary.
A duly appointed officer may appoint one or more officers or assistant
officers if authorized by the Board of Directors.
An officer with discretionary authority shall discharge his duties under
that authority: (a) in good faith; (b) with the care an ordinarily prudent
person in a like position would exercise under similar circumstances; and (c) in
a manner he reasonably believes to be in the best interests of the Corporation.
The Board of Directors may remove any officer at any time with or without
cause.
ARTICLE IV
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation and the
name of the initial registered agent of the Corporation are set forth in the
original certificate of incorporation.
ARTICLE V
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation and shall be in such form and contain such other words and/or
figures as the Board of Directors shall determine or the law require.
ARTICLE VI
LIABILITY OF DIRECTORS
The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by the provisions of the Business
Corporation Act, as the same may be amended and supplemented.
ARTICLE VII
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by the provisions
of the Business Corporation Act, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have the power to indemnify under
said provisions from and against any and all of the expenses, liabilities or
other matters referred to in or covered by said provisions, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any bylaw, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
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executors and administrators of such a person.
ARTICLE VIII
CONTROL OVER BYLAWS
The Board of Directors may amend or repeal these bylaws, unless (a) the
certificate of incorporation or the Business Corporation Act reserve this power
exclusively to the shareholders in whole or in part; or the shareholders in
amending or repealing a particular bylaw provide expressly that the Board of
Directors may not amend or repeal that bylaw. The shareholders may amend or
repeal these bylaws even though the bylaws may also be amended or repealed by
the Board of Directors.
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CERTIFICATE OF INCORPORATION
OF
SFX BROADCASTING OF THE MIDWEST, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is SFX BROADCASTING OF THE MIDWEST, Inc.
SECOND: The address, including street, number, city and county, of
the registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19805, County of New Castle; and the name of the
registered agent of the corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is one thousand. The par value of each of such
shares is one cent. All such shares are of one class and are shares of Common
Stock.
FIFTH: The name and the mailing address of the incorporator is as
follows:
NAME MAILING ADDRESS
---- ---------------
Michael Principe 50 East 58th Street, 19th Floor
New York NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
ss. 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
ss. 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
EIGHTH: For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the ease may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The
number of directors which shall constitute the whole Board of
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Directors shall be fixed by, or in the manner provided in, the
Bylaws. The phrase "whole Board" and the phrase "total number of
directors" shall be deemed to have the same meaning, to wit, the
total number of directors which the corporation would have if there
were no vacancies. No election of directors need be by written
ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance
with the provisions of ss. 109 of the General Corporation Law of the
State of Delaware, and, after the corporation has received any
payment for any of its stock, the power to adopt, amend, or repeal
the Bylaws of the corporation nay be exercised by the Board of
Directors of the corporation; provided, however, that any provision
for the classification of directors of the corporation for staggered
terms pursuant to the provisions of subsections (d) of ss. 141 of
the General Corporation Law of the State of Delaware shall be set
forth in an initial Bylaw or in a Bylaw adopted by the stockholders
entitled to vote of the corporation unless provisions for such
classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at any meeting of
stockholders. Whenever the corporation shall be authorized to issue
more than one class of stock, no outstanding share of any class of
stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the
right to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of ss. 242 of the
General Corporation Law of the State of Delaware shall otherwise
require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to
vote upon the increase to decrease in the number of authorized
shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of ss. 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of ss. 145 of the General Corporation Law of the State of Delaware,
as the same may be amended and supplemented, indemnify any and all persons whom
it shall have power to indemnify under said section from and against any and all
of the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions 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 all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on May 30, 1997
/s/ Michael Principe
------------------------------------
Michael Principe, Incorporator
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BY-LAWS
OF
SFX BROADCASTING OF THE MIDWEST, INC.
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be established
and maintained at and shall be the registered agent of the Corporation in charge
hereof.
1.2 Other Offices: The corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the corporation may
require, provided, however, that the corporation's books and records shall be
maintained at such place within the continental United States as the Board of
Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An annual
meeting of stockholders shall be held each year within five months after the
close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called by
the President or by the Chairman of the Board of Directors, or at the request in
writing by stockholders of record owning at least fifty (50%) percent of the
issued and outstanding voting shares of common stock of the corporation.
2.5 Notice of Meeting of Stockholders: Except as otherwise expressly
required or permitted by law, not less than ten days nor more than sixty days
before the date of every
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stockholders' meeting the Secretary shall give to each stockholder of record
entitled to vote at such meeting, written notice, served personally by mail or
by telegram, 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. Such
notice, if mailed shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address for
notices to such stockholder as it appears on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum. The withdrawal of any shareholder
after the commencement of a meeting shall have no effect on the existence of a
quorum, after a quorum has been established at such meeting.
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority of voting stockholders, present in person or by proxy,
may adjourn the meeting from time to time without notice other than announcement
at the meeting. In the absence of a quorum, the officer presiding thereat shall
have power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given except as provided in paragraph (d)
below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President, shall preside
at meetings of the stockholders. The Secretary shall act as secretary of the
meeting or if he is not present, then the presiding officer may appoint a person
to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise provided by
the Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
voting stock standing in his name on the books of the corporation on the record
date for the meeting. Except as otherwise provided by these by-laws, all
elections and questions shall be decided by the vote of a majority in interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting.
2.9 Proxies: Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
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2.10 Inspectors: The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before or
at the meeting; or if one or both inspectors so appointed shall refuse to serve
or shall not be present, such appointment shall be made by the officer presiding
at the meeting.
2.11 List of Stockholders: (a) At least ten days before every
meeting of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of at least
ten days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.12 Procedure at Stockholders' Meetings: Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure at
every meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meeting: Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting, may be taken without a meeting, without prior notice
and without a vote, if a consent 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. 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.
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ARTICLE III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs of the
corporation shall be managed by its Board of Directors which may exercise all
the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors: The
number of directors which shall constitute the Board of Directors shall be ( )
unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not be
stockholders.
3.3 Vacancies on Board of Directors: Removal: (a) Any director may
resign his office at any time by delivering his resignation in writing to the
Chairman of the Board or to the President. It will take effect at the time
specified therein or, if no time is specified, it will be effective at the time
of its receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any
time by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of Directors
may hold their meetings, both regular and special, either within or outside the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required. If
the date designated for any regular meeting be a legal holiday, then the meeting
shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of the stockholders for
the election of officers and the transaction of such other business as may come
before it. If such meeting is held at the place of the stockholders' meeting, no
notice thereof shall be required.
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(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or at
the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting, of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same not
later than the date before the meeting.
Unless required by law, such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting. Any and all business may be transacted at any meeting of the Board of
Directors. No notice of any adjourned meeting need be given. No notice to or
waiver by any director shall be required with respect to any meeting at which
the director is present.
3.5 Quorum and Action: Unless provided otherwise by law or by the
Certificate of Incorporation or these by-laws, a majority of the Directors shall
constitute a quorum for the transaction of business; but if there shall be less
than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. The vote of a majority of the Directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The President,
or, in his absence a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officer may appoint a
secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution or
resolutions passed by a majority of Directors designate one or more committees,
each of such committees to consist of one or more Directors of the Corporation,
for such purposes as the Board shall determine. 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.
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3.10 Compensation of Directors: Directors shall receive such
reasonable compensation of their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected officers of
the corporation shall be a President, a Treasurer and a Secretary, and such
other officers as the Board of Directors shall deem advisable. The officers
shall be elected by the Board of Directors at its annual meeting following the
annual meeting of the stockholders, to serve at the pleasure of the Board or
otherwise as shall be specified by the Board at the time of such election and
until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time,
and from time to time, additional officers or agents with such duties as it may
deem necessary or desirable. Such additional officers shall serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time has been specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be removed
at any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the Directors then
in office.
4.3 Duties: (a) President: The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall supervise and control all the business and affairs of the
corporation. He shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. He shall see that all orders and resolutions of
the Board
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of Directors are carried into effect (unless any such order or resolution shall
provide otherwise), and in general shall perform all duties incident to the
office of president and such other duties as may be prescribed by the Board of
Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and custody
of and be responsible for all funds and securities of the Corporation; (2)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever; (3) deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by
resolution of the Board of Directors; and (4) in general perform all duties
incident to the office of treasurer and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors. He shall,
if required by the Board of Directors, give a bond for the faithful discharge of
his duties in such sum and with such surety or sureties as the Board of
Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of the
meetings of the stockholders, the Board of Directors, and all committees, if
any, of which a secretary shall not have been appointed, in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these by-laws and as required by law; (3) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents, the execution of which on behalf
of the corporation under its seal, is duly authorized; (4) keep a register of
the post off-ice address of each stockholder which shall be furnished to the
Secretary by such stockholder; (5) have general charge of stock transfer books
of the Corporation; and (6) in general perform all duties incident to the office
of secretary and such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) Every holder of stock in the corporation
shall be entitled to have a certificate signed by, or in the name of, the
corporation by the President and by the Treasurer or the Secretary, certifying
the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of issue.
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(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the holder
of such certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the corporation's books. The corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be made
on the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The
corporation may maintain one or more transfer offices or agencies where stock of
the corporation shall be transferable. The corporation may also maintain one or
more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record:
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall be not more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination
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of the stockholders. A determination of stockholders of record entitled to
notice or to vote at a meeting of stockholders shall apply to any adjournrnent
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise order, the
President, the Secretary or the Treasurer shall have full power and authority,
on behalf of the corporation, to attend, act and vote at any meeting of the
stockholders of any corporation in which the corporation may hold stock, and at
such meeting to exercise any or all rights and powers incident to the ownership
of such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. The Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation: (a) Any of the following officers, to wit: the President and the
Treasurer shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidence of indebtedness, or other securities now or hereafter standing in the
name of or owned by the corporation, and to make, execute and deliver, under the
seal of the corporation, any and all written instruments of assignment and
transfer necessary or proper to effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come, shall be
entitled, without further inquiry or investigation and regardless of the date of
such certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the corporation, and that with respect to such securities the authority of
these provisions of the by-laws and of such officers is still in full force and
effect.
By-Laws 9
<PAGE>
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form and
shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the time,
place or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the holding
thereof, or actual attendance at the meeting in person or, in the case of any
stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving
of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its directors,
officers and employees to the fullest extent allowed by law, provided, however,
that it shall be within the discretion of the Board of Directors whether to
advance any funds in advance of disposition of any action, suit or proceeding,
and provided ftirther that nothing in this section 7.4 shall be deemed to
obviate the necessity of the Board of Directors to make any determination that
indemnification of the director, officer or employee is proper under the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.
7.5 Fiscal Year: Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the corporation shall end on
____________.
By-Laws 10
<PAGE>
CERTIFICATE OF INCORPORATION
OF
DELSENER/SLATER ENTERPRISES, INC.
----------------
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purpose hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is DELSENER/SLATER ENTERPRISES, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19805, County of New Castle; and the name of the
registered agent of the corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is one thousand. The par value of each of such shares is
one cent. All such shares are of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
---- ---------------
Leslie J. Vollino 375 Hudson Street, 11th Floor
New York, NY 10014
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
ss.291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
ss.279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholder or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholder or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
<PAGE>
EIGHT: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of ss.109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the Bylaws of the
corporation may be exercised by the Board of Directors of the corporation;
provided, however, that any provision for the classification of directors
of the corporation for staggered terms pursuant to the provisions of
subsection (d) of ss.141 of the General Corporation Law of the State of
Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by
the stockholders entitled to vote of the corporation unless provisions for
such classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only one class of
stock, each outstanding share shall entitle the holder thereof to notice
of, and the right to vote at, any meeting of stockholders. Whenever the
corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under
the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of ss.242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of ss.102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of ss.145 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
2
<PAGE>
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
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 all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on September 11, 1996.
/s/ Leslie J. Vollino
-----------------------------------
Leslie J. Vollino, Incorporator
3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DELSENER/SLATER ENTERPRISES, INC.
DELSENER/SLATER ENTERPRISES, INC. (the "Corporation"), a corporation duly
organized and validly existing under and by virtue of the General Corporation
Law of the State of Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST:That pursuant to Section 141(f) of the DGCL, the Board of Directors of the
Corporation unanimously adopted resolutions setting forth a proposed amendment
of the Certificate of Incorporation of the Corporation, declaring said amendment
to be advisable and directing that the proposed amendment be considered by the
stockholders of the Corporation. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Corporation
be amended by changing Article FIRST thereof so that, as amended, said Article
shall be and read as follows:
FIRST: The name of the Corporation (hereinafter called the
"corporation") is SFX Concerts, Inc.
SECOND: That thereafter, pursuant to resolutions of its Board of Directors, the
stockholders of the Corporation, pursuant to Sections 242 and 228 of the DGCL,
unanimously approved the resolutions setting forth the amendment to the
Certificate of Incorporation.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by Michael G. Ferrel, its President, and Howard J. Tytel, its Secretary
on this 19th day of June, 1997.
By: /s/ Howard J. Tytel
----------------------------
Howard J. Tytel
Executive Vice President
ATTEST:
/s/ Kraig G. Fox
- ----------------
Secretary
<PAGE>
BYLAWS
OF
DELSENER/SLATER ENTERPRISES, INC.
(a Delaware corporation)
--------------
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates representing
stock in the corporation shall be signed by, or in the name of, the corporation
by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the corporation. Any or all the
signatures on any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by
the General Corporation Law. Any restrictions on the transfer or registration
of transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or
uncertified shares in place of any certificate theretofore issued by it,
alleged to have been lost, stolen, or destroyed, and the Board of Directors may
require the owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
any such new certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any conditions imposed
by the General Corporation Law, the Board of Directors of the corporation may
provide by resolution or resolutions that some or all of any or all classes or
series of the stock of the corporation shall be uncertificated shares. Within a
reasonable time after the issuance or transfer of any uncertificated
<PAGE>
shares, the corporation shall send to the registered owner thereof any written
notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does not
issue fractions of a share, it shall (1) arrange for the disposition of
fractional interest by those entitled thereto, (2) pay in case the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing the full shares or uncertificated full shares before
a specified date, or subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if
any, transfers or registration of transfers of shares of stock of the
corporation shall be made only on the stock ledger of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the corporation or with
a transfer agent or a registrar, if any, and, in the case of shares represented
by certificates, on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before
the date of such meeting. If no record date is fixed by the Board of Directors,
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 of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting. In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining the
- 2 -
<PAGE>
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by the
General Corporation Law, shall be the first date 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. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by 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 day on which the
Board of Directors adopts the resolution taking such prior action. In order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion, or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the
right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term "share" or "shares" or "share of stock"
or "shares of stock" or "stockholder" or "stockholders" refers to an
outstanding share or shares of stock and to a holder or holders of record of
outstanding shares of stock when the corporation is authorized to issue only
one class of shares of stock, and said reference is also intended to include
any outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the
certificate of incorporation confers such rights where there are two or more
classes or series of shares of stock or upon which or upon whom the General
Corporation Law confers such rights notwithstanding that the certificate of
incorporation may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights thereunder; provided,
however, that no such right shall vest in the event of an increase or a
decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the certificate
of incorporation, except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
-TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date and at the time fixed by
the directors.
- 3 -
<PAGE>
-PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of Delaware.
-CALL. Annual meeting and special meeting may be called by
the directors or by any officer instructed by the directors to call the
meeting.
-NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating
the place within the city or other municipality or community at which the list
of stockholders of the corporation may be examined. The notice of an annual
meeting shall state that the meeting is called for the election of directors
and for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting) state the purpose or purposes.
The notice of a special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any meeting shall also
include, or be accompanied by, any additional statements, information, or
documents prescribed by the General Corporation Law. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at his
record address or at such other address which he may have furnished by request
in writing to the Secretary of the corporation. Notice by mail shall be deemed
to be given when deposited, with postage thereon prepaid, in the United States
Mail. If a meeting is adjourned to another time, not more than thirty days
hence, and/or to another place, and if an announcement of the adjourned time
and/or place is made at the meeting, it shall not be necessary to give notice
of the adjourned meeting unless the directors, after adjournment, fix a new
record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or
after the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not 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.
8. STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders, 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, 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 or other municipality or community
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
- 4 -
<PAGE>
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
corporation, or to vote at any meeting of stockholders.
-CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting - the Chairman of the Board, if any, the Vice- Chairman of
the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither
the Secretary nor an Assistant Secretary is present the Chairman of the meeting
shall appoint a secretary of the meeting.
-PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
-INSPECTORS. The directors, in advance of any meetings, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspectors at such
meeting with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall
receive votes, ballots, or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots, or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors, if
any, shall make a report in writing of any challenge, question, or matter
determined by him or them and execute a certificate of any fact found by him or
them. Except as otherwise required by subsection (e) of Section 231 of the
General Corporation Law, the provision of that Section shall not apply to the
corporation.
- 5 -
<PAGE>
-QUORUM. The holders of a majority of the outstanding shares
of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
-VOTING. Each share of stock shall entitle the holder thereof
to one vote. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Any other action shall be authorized by a
majority of the votes cast except where the General Corporation Law prescribes
a different percentage of votes and/or a different exercise of voting power,
and except as may be otherwise prescribed by the provisions of the certificate
of incorporation and these Bylaws. In the election of directors, and for any
other action, voting need not be by ballot.
-STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may 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 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. 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. Action taken pursuant to this
paragraph shall be subject to the provisions of Section 228 of the General
Corporation Law.
- 6 -
<PAGE>
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of Director
of the corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The initial Board of Directors shall consist of three persons.
Thereafter the number of directors constituting the whole board shall be at
least one. Subject to the foregoing limitation and except for the first Board
of Directors, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be three. The number of directors may be increased or decreased by action
of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless
the members thereof shall have been named in the certificate of incorporation,
shall be elected by the incorporator or incorporators and shall hold office
until the first annual meeting of stockholders and until their successors are
elected and qualified or until their earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation.
Thereafter, directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until the next annual
meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal. Except as the General Corporation
Law may otherwise require, in the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling
of any vacancy in that connection, newly created directorships and any
vacancies in the Board of Directors, including unfilled vacancies resulting
from the removal of directors for cause or without cause, may be filled by the
vote of a majority of the remaining directors then in office, although less
than a quorum, or by the sole remaining director.
4. MEETINGS.
-TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
-PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
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<PAGE>
-CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, of the President, or of a majority of the directors in office.
-NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of any such person at a
meeting shall constitute a waiver of notice of such meeting, except when he
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors need be specified in any
written waiver of notice.
-QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
vote of the majority of the directors present of the General Corporation Law
and these Bylaws which govern a meeting of directors held to fill vacancies and
newly created directorships in the Board or action of disinterested directors.
Any member or members of the Board of Directors or of any
committee designated by the Board, may participate in a meeting of the Board,
or any such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other.
-CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall
preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided
by the General Corporation Law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of the majority of the
shares then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one
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or more of the directors of the corporation. 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 the committee. In the absence
or disqualification of any member of any such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors 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, shall have and may exercise the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation with the exception of any authority the delegation
of which is prohibited by Section 141 of the General Corporation Law, and may
authorize the seal of the corporation to be affixed to all papers which may
require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board or 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 III
OFFICERS
The officers of the corporation shall consist of a President,
a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by
the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board,
an Executive Vice-President, one or more other Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other
officers with such titles as the resolution of the Board of Directors choosing
them shall designate. Except as may otherwise be provided in the resolution of
the Board of Directors choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him,
each officer shall be chosen for a term which shall continue until the meeting
of the Board of Directors following the next annual meeting of stockholders and
until his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as shall
be prescribed in the resolutions of the Board of Directors designating and
choosing such officers and prescribing their authority and duties, and shall
have such additional authority and duties as are incident to their office
except to the extent that such resolutions may be inconsistent therewith. The
Secretary or an Assistant Secretary of the corporation shall record all of the
proceedings of all meetings and actions in writing of stockholders, directors,
and committees of directors, and shall exercise such additional authority and
perform such
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additional duties as the Board shall assign to him. Any officer may be removed,
with or without cause, by the Board of Directors. Any vacancy in any office may
be filled by the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such corm as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the General Corporation Law, the power to amend, alter,
or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true, and
correct copy of the Bylaws of DELSENER/SLATER ENTERPRISES, INC., a Delaware
corporation, as in effect on the date hereof.
Dated:
/s/ Illegible
---------------------------------
Secretary of
DELSENER/SLATER ENTERPRISES, INC.
(SEAL)
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<PAGE>
CERTIFICATE OF INCORPORATION
OF
SFX DELAWARE, INC.
The undersigned, a natural person, for the purpose of
organizing a corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of the
laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware
Code and the acts amendatory thereof and supplemental thereto, and known,
identified, and referred to as the "General Corporation Law of the State of
Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is SFX DELAWARE, INC.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State of Delaware is
1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name
of the registered agent of the corporation in the State of Delaware at such
address is Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred. The par value of each
of such shares is one cent. All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator
is as follows:
NAME MAILING ADDRESS
---- ---------------
Eugene Serban 150 East 58th Street, 19th Floor
New York, NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this corporation
under ss. 291 of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under ss. 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the
<PAGE>
stockholders or class of stockholders of this corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the
conduct of the affairs of the corporation, and in further definition,
limitation, and regulation of the powers of the corporation and of its
directors and of its stockholders or any class thereof, as the case may be, it
is further provided:
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the Bylaws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which
the corporation would have if there were no vacancies. No
election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have
been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of ss. 109 of the General
Corporation Law of the State of Delaware, and, after the
corporation has received any payment for any of its stock,
the power to adopt, amend, or repeal the Bylaws of the
corporation may be exercised by the Board of Directors of the
corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered
terms pursuant to the provisions of subsections (d) of ss.
141 of the General Corporation Law of the State of Delaware
shall be set forth in an initial Bylaw or in a Bylaw adopted
by the stockholders entitled to vote of the corporation
unless provisions for such classification shall be set forth
in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the
holder thereof to notice of, and the right to vote at, any
meeting of stockholders. Whenever the corporation shall be
authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied
voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right
to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of ss. 242 of
the General Corporation Law of the State of Delaware shall
otherwise require;
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<PAGE>
provided, that no share of any such class which is otherwise
denied voting power shall entitle the holder thereof to vote
upon the increase to decrease in the number of authorized
shares of said class.
NINTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of ss. 102 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented.
TENTH: The corporation shall, to the fullest extent permitted
by the provisions of ss. 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions 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 all rights at any time conferred upon the stockholders of the corporation
by this certificate of incorporation are granted subject to the provisions of
this Article ELEVENTH.
Signed on February 10, 1997.
---------------------------------
Eugene Serban, Incorporator
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<PAGE>
BY-LAWS
OF
SFX DELAWARE, INC.
-----------------------------------------------------
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be
established and maintained at and shall be the registered agent of the
Corporation in charge hereof.
1.2 Other Offices: The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require, provided, however, that the corporation's books and
records shall be maintained at such place within the continental United States
as the Board of Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within
or outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An
annual meeting of stockholders shall be held each year within five months after
the close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called
by the President or by the Chairman of the Board of Directors, or at the
request in writing by stockholders of record owning at least fifty (50%)
percent of the issued and outstanding voting shares of common stock of the
corporation.
2.5 Notice of Meetings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of
<PAGE>
every stockholders' meeting the Secretary shall give to each stockholder of
record entitled to vote at such meeting, written notice, served personally by
mail or by telegram, 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. Such notice, if mailed shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address for notices to such stockholder as it appears on the records of the
corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by
the Certificate of Incorporation or by law, at any meeting of the stockholders,
the presence in person or by proxy of stockholders entitled to cast a majority
of the votes thereat shall constitute a quorum. The withdrawal of any
shareholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
(b) At any meeting of the stockholders at which a quorum
shall be present, a majority of voting stockholders, present in person or by
proxy, may adjourn the meeting from time to time without notice other than
announcement at the meeting. In the absence of a quorum, the officer presiding
thereat shall have power to adjourn the meeting from time to time until a
quorum shall be present. Notice of any adjourned meeting, other than
announcement at the meeting, shall not be required to be given except as
provided in paragraph (d) below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President, shall
preside at meetings of the stockholders. The Secretary shall act as secretary
of the meeting or if he is not present, then the presiding officer may appoint
a person to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise
provided by the Certificate of Incorporation or these by-laws, at every meeting
of the stockholders each stockholder shall be entitled to one vote for each
share of voting stock standing in his name on the books of the corporation on
the record date for the meeting. Except as otherwise provided by these by-laws,
all elections and questions shall be decided by the vote of a majority in
interest of the stockholders present in person or represented by proxy and
entitled to vote at the meeting.
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2.9 Proxies: Any stockholder entitled to vote at any meeting
of stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other vote
by ballot at any meeting of the stockholders shall be supervised by at least
two inspectors. Such inspectors may be appointed by the presiding officer
before or at the meeting; or if one or both inspectors so appointed shall
refuse to serve or shall not be present, such appointment shall be made by the
officer presiding at the meeting.
2.11 List of Stockholders: (a) At least ten days before every
meeting of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of at least
ten days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by
this Section 2.11 or the books of the corporation, or to vote in person or by
proxy at any meeting of stockholders.
2.12 Procedure at Stockholders' Meetings: Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure at
every meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meeting: Unless otherwise
provided by the Certificate of Incorporation, any action required to be taken
at any annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting, may be taken without a meeting, without
prior notice and without a vote, if a consent 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. Prompt notice of the taking
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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 III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs
of the corporation shall be managed by its Board of Directors which may
exercise all the powers of the corporation except such as are by the law of the
State of Delaware or the Certificate of Incorporation or these by-laws required
to be exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors:
The number of directors which shall constitute the Board of Directors shall be
( ) unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not
be stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any
director may resign his office at any time by delivering his resignation in
writing to the Chairman of the Board or to the President. It will take effect
at the time specified therein or, if no time is specified, it will be effective
at the time of its receipt by the corporation. The acceptance of a resignation
shall not be necessary to make it effective, unless expressly so provided in
the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any
time by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of
Directors may hold their meetings, both regular and special, either within or
outside the State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required.
If the date designated for any regular meeting be a legal holiday, then the
meeting shall be held on the next day which is not a legal holiday.
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(c) The first meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of the
stockholders for the election of officers and the transaction of such other
business as may come before it. If such meeting is held at the place of the
stockholders' meeting, no notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or
at the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same
not later than the date before the meeting.
Unless required by law, such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting. Any and all business may be transacted at any meeting of the Board of
Directors. No notice of any adjourned meeting need be given. No notice to or
waiver by any director shall be required with respect to any meeting at which
the director is present.
3.5 Quorum and Action: Unless provided otherwise by law or by
the Certificate of Incorporation or these by-laws, a majority of the Directors
shall constitute a quorum for the transaction of business; but if there shall
be less than a quorum at any meeting of the Board, a majority of those present
may adjourn the meeting from time to time. The vote of a majority of the
Directors present at any meeting at which a quorum is present shall be
necessary to constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The
President, or, in his absence a member of the Board of Directors selected by
the members present, shall preside at meetings of the Board. The Secretary
shall act as secretary of the meeting, but in his absence the presiding officer
may appoint a secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
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3.9 Committees: The Board of Directors shall, by resolution
or resolutions passed by a majority of Directors designate one or more
committees, each of such committees to consist of one or more Directors of the
Corporation, for such purposes as the Board shall determine. 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.
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected
officers of the corporation shall be a President, a Treasurer and a Secretary,
and such other officers as the Board of Directors shall deem advisable. The
officers shall be elected by the Board of Directors at its annual meeting
following the annual meeting of the stockholders, to serve at the pleasure of
the Board or otherwise as shall be specified by the Board at the time of such
election and until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time,
and from time to time, additional officers or agents with such duties as it may
deem necessary or desirable. Such additional officers shall serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein or, if no time has been specified, at the time of its receipt
by the corporation. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
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4.2 Removal of Elected Officers: Any elected officer may be
removed at any time, either with or without cause, by resolution adopted at any
regular or special meeting of the Board of Directors by a majority of the
Directors then in office.
4.3 Duties: (a) President: The President shall be the
principal executive officer of the corporation and, subject to the control of
the Board of Directors, shall supervise and control all the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the stockholders and of the Board of Directors. He shall see that all orders
and resolutions of the Board of Directors are carried into effect (unless any
such order or resolution shall provide otherwise), and in general shall perform
all duties incident to the office of president and such other duties as may be
prescribed by the Board of Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(2) receive and give receipts for moneys due and payable to the corporation
from any source whatsoever; (3) deposit all such moneys in the name of the
corporation in such banks, trust companies, or other depositories as shall be
selected by resolution of the Board of Directors; and (4) in general perform
all duties incident to the office of treasurer and such other duties as from
time to time may be assigned to him by the President or by the Board of
Directors. He shall, if required by the Board of Directors, give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties
as the Board of Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of
the meetings of the stockholders, the Board of Directors, and all committees,
if any, of which a secretary shall not have been appointed, in one or more
books provided for that purpose; (2) see that all notices are duly given in
accordance with the provisions of these by-laws and as required by law; (3) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents, the execution of
which on behalf of the corporation under its seal, is duly authorized; (4) keep
a register of the post office address of each stockholder which shall be
famished to the Secretary by such stockholder; (5) have general charge of stock
transfer books of the Corporation; and (6) in general perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the President and by the Treasurer or the Secretary,
certifying the number of shares owned by him.
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<PAGE>
(b) If such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the
holder of such certificate, the number of shares represented thereby and the
date of issue thereof shall be made on the corporation's books. The corporation
shall be entitled to treat the holder of any share of stock as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be
made on the books of the corporation only by direction of the person named in
the certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time
may authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates:
The corporation may maintain one or more transfer offices or agencies where
stock of the corporation shall be transferable. The corporation may also
maintain one or more registry offices where such stock
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<PAGE>
shall be registered. The Board of Directors may make such rules and regulations
as it may deem expedient concerning the issue, transfer and registration of
stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of
Record: The Board of Directors may fix, in advance, a date as the record date
for the purpose of determining stockholders entitled to notice of, or to vote
at, any meeting of the stockholders or any adjournment thereof, or the
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion or exchange of stock, or to express consent to
corporate action in writing without a meeting, or in order to make a
determination of the stockholders for the purpose of any other lawful action.
Such record date in any case shall be not more than sixty days nor less than
ten days before the date of a meeting of the stockholders, nor more than sixty
days prior to any other action requiring such determination of the
stockholders. A determination of stockholders of record entitled to notice or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate
of Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise
order, the President, the Secretary or the Treasurer shall have full power and
authority, on behalf of the corporation, to attend, act and vote at any meeting
of the stockholders of any corporation in which the corporation may hold stock,
and at such meeting to exercise any or all rights and powers incident to the
ownership of such stock, and to execute on behalf of the corporation a proxy or
proxies empowering another or others to act as aforesaid. The Board of
Directors from time to time may confer like powers upon any other person or
persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation: (a) Any of the following officers, to wit: the President and the
Treasurer shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidence of indebtedness, or other securities now or hereafter
standing in the
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<PAGE>
name of or owned by the corporation, and to make, execute and deliver, under
the seal of the corporation, any and all written instruments of assignment and
transfer necessary or proper to effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting
forth the names of persons who are then officers of the corporation, then all
persons to whom such instrument and annexed certificate shall thereafter come,
shall be entitled, without farther inquiry or investigation and regardless of
the date of such certificate, to assume and to act in reliance upon the
assumption that the shares of stock or other securities named in such
instrument were theretofore duly and properly transferred, endorsed, sold,
assigned, set over and delivered by the corporation, and that with respect to
such securities the authority of these provisions of the by-laws and of such
officers is still in full force and effect.
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form
and shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the
time, place or purpose of any meeting of the stockholders, directors or a
committee is required to be given under the law of the State of Delaware, the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the holding thereof, or actual attendance at the meeting in person or, in
the case of any stockholder, by his attorney-in-fact, shall be deemed
equivalent to the giving of such notice to such persons.
7.4 Indemnification: The corporation shall indemnify its
directors, officers and employees to the fullest extent allowed by law,
provided, however, that it shall be within the discretion of the Board of
Directors whether to advance any funds in advance of disposition of any action,
suit or proceeding, and provided further that nothing in this section 7.4 shall
be deemed to obviate the necessity of the Board of Directors to make any
determination that indemnification of the director, officer or employee is
proper under the circumstances because he
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<PAGE>
has met the applicable standard of conduct set forth in subsections (a) and (b)
of Section 145 of the Delaware General Corporation Law.
7.5 Fiscal Year: Except as from time to time otherwise
determined by the Board of Directors, the fiscal year of the corporation shall
end on ______________.
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<PAGE>
STATE of DELAWARE
CERTIFICATE of FORMATION of
FIRST: The name of the limited liability company is SFX Network Group, L.L.C.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its Registered Agent at such address is The
Corporation Trust Company.
THIRD: (Use this paragraph only if the company is to have a specific date of
dissolution: "The latest date on which the limited liability company is to
dissolve is ____________________________________________________________.")
FOURTH: (Insert any other matters the members determine to include herein.)
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation
of ______________________ this day of December 2, 1997.
/s/ R. Jordan Greenhall
----------------------------
R. Jordan Greenhall
Authorized Person(s)
<PAGE>
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF SHORELINE AMPHITHEATRE, LTD.
Nicholas P. Clainos and Franklin D. Rockwell, Jr. certify that:
1. They are the President and Secretary, respectively, of Shoreline
Amphitheatre, Ltd., a California corporation.
2. An Article designated Article Fifth is added to the Articles of
Incorporation to read as follows:
"ARTICLE FIFTH
a. The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible
under California law.
b. This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the California General
Corporation Law) through bylaw provisions, agreements with
agents, vote of shareholders or disinterested directors or
otherwise, in excess of the indemnification otherwise
permitted by said Section 317, subject only to the applicable
limits set forth in Section 204 of the California General
Corporation Law with respect to actions for breach of duty to
the corporation and its shareholders.
c. Any repeal or modification of the foregoing provisions of this
Article Fifth shall not adversely affect any right of
indemnification or limitation of liability of an agent of the
corporation relating to acts or omissions occurring prior to
such repeal or modification."
3. The amendment herein set forth has been duly approved by the
Board of Directors.
4. The amendment herein set forth has been duly approved by the
required vote of the shareholders in accordance with Section 902 of the
Corporations Code. The Corporation has only one class of voting shares and the
number of outstanding voting shares is 10,000. The number of shares voting in
favor of the amendment equaled or exceeded the vote required. The percentage
vote required for the approval of the amendment herein set forth was more than
50%.
Date: 1-21-88, 1988 /s/ Nicholas P. Clainos
-----------------------------------
Nicholas P. Clainos, President
Date: 1-21-88, 1988 /s/ Franklin D. Rockwell, Jr.
-----------------------------------
Franklin D. Rockwell, Jr.
Secretary
I, Nicholas P. Clainos, declare under penalty of perjury under the
laws of the State of California that I have read the foregoing certificate and
know the contents thereof and that the same is true of my own knowledge.
<PAGE>
Dated: 1-21-88, 1988 /s/ Nicholas P. Clainos
-----------------------------------
Nicholas P. Clainos
I, Franklin D. Rockwell, Jr., declare under penalty of perjury under
the laws of the State of California that I have read the foregoing certificate
and know the contents thereof and that the same is true of my own knowledge.
Dated: 1-21-88 , 1988 /s/ Franklin D. Rockwell, Jr.
Franklin D. Rockwell, Jr.
Secretary
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<PAGE>
ARTICLES OF INCORPORATION
OF
SHORELINE AMPHITHEATRE, LTD.
I
The name of the corporation is Shoreline Amphitheatre, Ltd.
II
The purpose of this corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The name and address in the State of California of this corporation's initial
agent for service of process is:
Richard L. Greene
Greene, Radovsky, Maloney & Share
One Market Plaza Spear Street Tower, Suite 3200
San Francisco, CA 94105
IV
The corporation is authorized to issue only one class of shares of stock; and
the total number of shares which this corporation is authorized to issue is one
hundred thousand (100,000), no par value.
Dated: February 21, 1986.
/s/ Richard L. Greene
-----------------------
RICHARD L. GREENE
I hereby declare that I am the person who executed the foregoing Articles of
Incorporation, which execution is my act and deed.
/s/ Richard L. Greene
-----------------------
RICHARD L. GREENE
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<PAGE>
BYLAWS
OF
SHORELINE AMPHITHEATRE, LTD.
ARTICLE I - OFFICES
1.01 - PRINCIPAL OFFICE
The principal executive and business office of the corporation is
hereby fixed and located in the City and County of San Francisco, State of
California or such other location as the board of directors may determine.
1.02 - OTHER OFFICES
Branch or subordinate offices may at any time be established at any
place or places by the board of directors.
ARTICLE II - MEETINGS OF SHAREHOLDERS
1.01 - PLACE OF MEETINGS
All annual and all other meetings of shareholders shall be held at
the principal executive office of the corporation, or at any other place within
or without the State of California which may be designated either by the board
of directors, or by the written consent of all shareholders entitled to vote
thereat, provided such shareholder consent is given either before or after the
meeting and filed with the secretary of the corporation.
2.02 - ANNUAL MEETINGS
The annual meetings of shareholders shall be held on the April first
Thursday of April at 10:00 a.m.; provided, however, that should said day fall
upon a legal holiday, then any such annual meeting of shareholders shall be held
at the same time and place on the next day thereafter ensuing which is not a
legal holiday. At such meetings, directors shall be elected, reports of the
affairs of (Amended by Board resolution 1/18/91) the corporation shall be
considered, and any other business may be transacted which is within the powers
of the shareholders.
2.03 - SPECIAL MEETINGS
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by any of (i) the president, (ii) the
board of directors, (iii) the chairman of the board, or (iv) one or more
shareholders holding shares in the aggregate entitled to cast not less than 10
percent of the votes at that meeting.
If a special meeting is called by any person or persons other than
the board of directors, such person shall make a request therefor in writing,
specifying (i) the date and time of such meeting, which shall be not less than
35 nor more than 60 days after the receipt of the request, and (ii) the general
nature of the business proposed to be transacted at the meeting. Such request
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, any
vice president or the secretary of the corporation. The officer receiving the
request shall cause notice to be given within 20 days to the shareholders
entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5, and
the notice shall set forth that a meeting will be held at the time requested by
the person or persons calling the meeting. If the notice is not given within
such 20-day period, the person(s) requesting the meeting may give the notice.
2.04 - NOTICE OF MEETINGS
All notices of meetings of shareholders, whether annual or special,
shall be sent or otherwise given not less than 10 nor more than 60 days before
the date of the meeting, except as provided in Section 2.03. The notice shall
specify the place, date and hour of the meeting and (i) in the case of a special
meeting, the general nature of the business to be transacted, or (ii) in the
case of the annual meeting, those matters which the board of directors, at the
time of giving the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees whom, at the time of the notice, management
intends to present for election. The notice shall also state the general nature
of the proposal if action is
<PAGE>
proposed to be taken at any meeting for approval of any of the following: (i) a
contract or transaction in which a director has a direct or indirect financial
interest; (ii) an amendment of the articles of incorporation; (iii) a
reorganization of the corporation; (iv) a voluntary dissolution of the
corporation; or (v) a distribution in dissolution other than in accordance with
the rights of any outstanding preferred shares. Notwithstanding the absence of
specific notice thereof, any such action may nevertheless be presented to the
meeting and be validly acted upon by the shareholders if approved by all
shareholders entitled to vote thereon, unless they sign waivers of notice
specifying the general nature of the proposal so approved.
2.05 - MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any shareholders' meeting shall be given either personally
or by first-class mail or telegraphic or written communication, charges prepaid,
addressed to the shareholder at the address of that shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice. If no such address appears on the corporation's books or has
been so given, notice shall be deemed to have been given if published at least
once in a newspaper of general circulation in the county where that office is
located or in any manner permitted by law. Notice shall be deemed to have been
given at the time when delivered personally, deposited in the mail, delivered to
a common carrier for transmission to the recipient, actually transmitted by
electronic means to the recipient by the person giving the notice, or sent by
other means of written communication. An affidavit of the mailing or other means
of giving any notice of any shareholders' meeting may be executed by the
secretary, assistant secretary, or any transfer agent of the corporation giving
the notice, and filed and maintained in the minute book of the corporation.
2.06 - ADJOURNED MEETINGS AND NOTICE THEREOF
Any shareholders' meeting, annual or special, whether or not a
quorum is present, may be adjourned from time to time by the vote of the
majority of the shares which are represented at the meeting either in person or
by proxy, but in.the absence of a quorum.
It shall not be necessary to give any notice of an adjournment or of
the business to be transacted at an adjourned meeting other than by announcement
at the meeting at which such adjournment is taken. However, when any
shareholders' meeting, either annual or special, is adjourned for more than 45
days, or if after the adjournment a new record date is fixed for the adjourned
meeting notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting. At any adjourned meetings, the
corporation may transact any business that might have been transacted at the
regular meeting.
2.07 - RECORD DATE FOR SHAREHOLDERS OF RECORD
For purposes of determining which shareholders are entitled to
receive notice of any meeting, to vote, or to give consent to corporate action
without a meeting, the board of directors may fix a record date in advance of
such meeting or corporate action which shall not be less than 10 nor more than
60 days before any such meeting or any such action without a meeting. Only
shareholders of record at the close of business on the date so fixed are
entitled to notice and to vote or to give consent, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided in the articles of incorporation,
by agreement, or in the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held; and
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the 60th day before the date of such other action,
whichever is later.
2.08 - VOTING AT MEETINGS
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Except as otherwise provided in the articles of incorporation and in
the case of cumulative voting for directors, each shareholder is entitled to one
vote. The shareholders' vote may be by voice vote or by ballot; provided,
however, that any election for directors must be by ballot if demanded by any
shareholder before the voting has begun. On any matter other than the election
of directors, any shareholder may vote part of the shares in favor of the
proposal and refrain from voting the remaining shares or vote them against the
proposal, but if the shareholder fails to specify the number of shares which the
shareholder is voting affirmatively, it will be conclusively presumed that the
shareholder's approving vote is with respect to all shares that the shareholder
is entitled to vote. The affirmative vote of a majority of the shares
represented and voting, provided such shares voting affirmatively also
constitutes a majority of the number of shares required for a quorum, shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by California General Corporation Law or by the articles of
incorporation.
Every shareholder entitled to vote at any election for directors
shall have the right to cumulate his votes by (i) giving one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which his shares are entitled, or (ii) distributing such cumulated
votes on the same principle among as many candidates as he chooses; provided
that the name of such candidate has been placed in nomination prior to the
voting and that at least one shareholder has given notice at the meeting, prior
to the voting, of an intention to cumulate votes. In any election of directors,
the candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected. Votes against a director or not cast
shall have no effect.
2.09 - QUORUM
The presence in person or by proxy of persons entitled to vote a
majority of the voting shares at any meeting shall constitute a quorum of the
shareholders for the transaction of business.
The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of one or more shareholders to leave less than a quorum, if any
action taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
2.10 - CONSENT OF ABSENTEES
The transactions of any meeting of shareholders, either annual or
special, however called and noticed and wherever held, shall be as valid as
though made at a meeting duly held after regular call and notice if a quorum is
present either in person or by proxy and if, either before or after the meeting,
each of the shareholders entitled to vote who was not present in person or by
proxy signs a written waiver of notice or a consent to the holding of such
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify either the business to be transacted or the purpose of any
annual or special meeting of shareholders, unless the action taken or proposed
to be taken is for approval of any of those matters specified in Section 2.04.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance at a meeting, in person or by proxy, shall also
constitute a waiver of notice of that meeting, except when the person objects at
the beginning of the meeting to the transaction of any business because the
meeting has not been lawfully called or convened, and except that attendance at
a meeting is not a waiver of any right to object to the consideration of matters
required by law to be included in the notice of the meeting but not so included,
if that objection is expressly made at the meeting.
2.11 - ACTION WITHOUT MEETING
Except as may be limited by the articles of incorporation and except
for the election of directors, any action which may be taken by vote of the
shareholders at any annual or special meeting may be taken without a meeting and
without prior notice if a consent in writing setting forth the action so taken
is signed by the holders of outstanding shares 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.
Directors may be elected by written consent without a meeting only if the
written consents of all outstanding shares entitled to vote are obtained, except
that a vacancy in the board (other than a vacancy created by removal of a
director) not filled by the board may be filled by the written consent of the
holders of a majority of the outstanding shares entitled to vote.
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<PAGE>
All such consents shall be filed and maintained in the corporate
records. Any shareholder (or the shareholder's proxyholders, or a transferee of
the shares or a personal representative of the shareholder or their respective
proxyholders) giving a written consent may revoke the consent only by a writing
received by the corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary of the corporation. Such revocation is effective upon its receipt
by the secretary of the corporation.
Unless the consents of all shareholders entitled to vote have been
solicited in writing:
(1) Notice of shareholder approval without a meeting by less than
unanimous written consent shall be given at least 10 calendar days before the
consummation of the action authorized by such approval, if the corporate action
concerns (i) a contract or transaction in which a director has a direct or
indirect financial interest under Section 310 of the California Corporations
Code, (ii) indemnification of agents of the corporation, (iii) reorganization of
the corporation, or (iv) a distribution in dissolution other than in accordance
with the rights of the outstanding preferred shares; and
(2) Prompt notice shall be given of any other corporate action
approved by shareholders without a meeting by less than unanimous written
consent. All such notices shall be given in the manner provided by Section 2.05.
2.12 - PROXIES
Every person entitled to vote for directors or on any other matter
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the shareholder's
attorney-in-fact. A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked, or by attendance
at the meeting and voting in person by the person executing the proxy, or by a
subsequent proxy executed by the same person and presented at the meeting; or
(ii) written notice of the death or incapacity of the maker of that proxy is
received by the corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the expiration of 11
months from the date of the proxy, unless another term of longer or shorter
duration is specified in the proxy. The revocability of a proxy that states on
its face that is irrevocable shall be governed by the provisions of Sections
705(e) and 705(f) of the Corporations Code of California.
ARTICLE III - DIRECTORS
3.01 - POWERS
Except as reserved to the shareholders by law, the articles of
incorporation or these bylaws, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
controlled by, the board of directors. Without limiting the generality of the
foregoing powers, the directors shall have the following powers:
First: To conduct, manage and control the affairs and business of
the corporation and to make such rules and regulations therefor not inconsistent
with law or with the articles of incorporation or these bylaws, as they may deem
best.
Second: To select and remove all the other officers, agents and
employees of the corporation, to prescribe such powers and duties for them as
may not be inconsistent with law, with the articles of incorporation or with
these bylaws, to fix their compensation and to require from them security for
faithful service.
Third: To change the principal executive and business office of the
corporation from one location to another as provided in Section 1.01 hereof; to
fix and locate from time to time one or more subsidiary offices of the
corporation within or without the State of California, as provided in Section
1.02 hereof; to designate any place within or without the State of California
for the holding of any shareholders' meeting or meetings except annual meetings;
and to adopt, make and use a corporate seal, to prescribe the forms of
certificates of stock and to alter the form of such seal and of such
certificates from time to time as in their judgment they may deem best, provided
that such seal and such certificates shall at all times comply with the
provisions of law.
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<PAGE>
Fourth: To authorize the issue of shares of stock of the corporation
from time to time, upon such terms as may be lawful, as dividends or in
consideration of money paid, labor done or services actually rendered to the
corporation or for its benefit or in its formation or reorganization, debts or
securities canceled, or tangible or intangible property actually received; but
neither promissory notes of the purchaser, unless secured by property other than
the shares acquired or otherwise permitted by Section 408 of the General
Corporation Law, nor future services shall constitute payment or part payment
for shares of the corporation.
Fifth: To borrow money and incur indebtedness for the purposes of
the corporation and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Sixth: To designate, by resolution adopted by a majority of the
authorized number of directors, one or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Any such committee
shall have all the authority of the board to the extent provided in the
resolution of the board or in the bylaws, except with respect to:
(a) The approval of any action for which, under the General
Corporation Law of California, also requires approval of the shareholders or
approval of the outstanding shares;
(b) The filling of vacancies on the board or in any committee;
(c) The fixing of compensation of the directors for serving on the
board or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation, except at
a rate, in a periodic amount or within a price range set forth in the articles
or determined by the board; or
(g) The appointment of other committees of the board or the members
thereof.
Seventh: To declare dividends at such times and in such amounts as
the condition of the affairs of the corporation may warrant.
Eighth: Generally to exercise all of the powers and to perform all
of the acts and duties that from time to time may be permitted by law
appertaining to their office.
3.02 - NUMBER OF DIRECTORS
The authorized number of directors of the corporation shall be two
until changed by an amendment of this bylaw.
3.03 - ELECTION AND TERM OF OFFICE
The directors shall be elected at each annual meeting of
shareholders and may be elected at any special meeting of shareholders held for
that purpose. Each director shall hold office until his successor is elected and
qualified, or until his earlier death, resignation, removal or ineligibility.
3.04 - REMOVAL
A director may be removed for cause by (i) the board, when such
director has been convicted of a felony or declared incompetent by court order,
or (ii) the superior court, at the suit of at least 10% of the shareholders of
any class of shares having found that the director has either committed
fraudulent or dishonest acts, or has grossly abused his authority with reference
to the corporation.
A director may be removed without cause by a majority vote of all
outstanding shares, provided that (i) where cumulative voting is in effect, such
director may not be removed over the objection of the number of shares required
to elect him, and (ii) where the articles of incorporation provide for the
election of a director by the shareholders of a certain class or series of
shares, such director may be removed only by the majority vote of the
outstanding shares of such class or series.
Except as provided in this Section 3.04, and any reduction of the
authorized number of directors notwithstanding, a director may not be removed
prior to the expiration of such director's term of office.
3.05 - VACANCIES
-5-
<PAGE>
Vacancies in the board of directors may be filled by a majority of
the remaining directors, though less than a quorum, or by a sole remaining
director. A vacancy in the board of directors shall be deemed to exist (i) in
case of the death, resignation, ineligibility or removal of any director, (ii)
if the authorized number of directors is increased, or (iii) if the shareholders
fail, at any annual or special meeting of shareholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors. If the board of
directors accepts the resignation of a director tendered to take effect at a
future time, the board or the shareholders shall have the power to elect a
successor to take office when the resignation is to become effective.
3.06 - PLACE OF MEETING
Regular and special meetings of the board of directors shall be held
at any place within or without the State of California which has been designated
from time to time by resolution of the board or by written consent of all
members of the board. In the absence of such designation, meetings shall be held
at the principal executive and business office of the corporation.
3.07 - MEETINGS BY TELEPHONE CONFERENCE
Members of the board may participate in a meeting through use of
conference telephone or similar communication equipment, so long as all members
participating in such meeting can hear one another.
3.08 - ACTION WITHOUT MEETING
Any action required or permitted to be taken by the board of
directors or any committee thereof may be taken without a meeting if each member
of the board consents in writing to such action. Such consents shall be filed
with the minutes of the meetings of the board.
3.09 - ORGANIZATION MEETING
Immediately following each annual meeting of shareholders, the board
of directors shall hold a regular meeting for the purpose of organization,
election of officers and the transaction of other business. Notice of such
meeting is hereby dispensed with.
3.10 - SPECIAL MEETINGS
Special meetings of the board of directors for any purpose or
purposes may be called at any time by (i) the chairman of the board, (ii) the
president, (iii) any vice president, (iv) the secretary, or (v) any two
directors.
Written notice of the time and place of special meetings shall be
delivered personally to the directors or sent to each director by mail or by
other form of written communication, charges prepaid, addressed to him at his
address as it appears upon the records of the corporation or, if it is not so
shown or is not readily ascertainable, at the place in which the meetings of
directors are regularly held. In case such notice is mailed, it shall be
deposited in the United States mail at least four days prior to the date of the
meeting. In case such notice is delivered personally or telegraphed, it shall be
so delivered or deposited with the telegraph company at least 48 hours prior to
the time of the meeting.
3.11 - ADJOURNMENT
A majority of the directors present, whether or not a quorum is
present, may adjourn any directors' meeting to another time and place. If a
meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given in the manner specified in Section 3.10
prior to the time of the adjourned meeting to the directors who were not present
at the time of adjournment.
3.12 - WAIVER OF NOTICE
The transactions at any meeting of the board of directors, however
called and noticed, or wherever held, shall be as valid as though such
transactions had occurred at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver
-6-
<PAGE>
of notice of or consent to holding the meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
3.13 - QUORUM
A majority of the authorized number of directors then holding office
shall constitute a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present shall be the
act of the board of directors, unless a greater number is required by law, the
articles of incorporation or these bylaws. However, a meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors if any action taken is approved by at least a majority
of the required quorum for such meeting. The provisions of this Section 3.13
shall apply to action taken by any committee from time to time designated by the
board of directors.
ARTICLE IV - OFFICERS
4.01 - OFFICERS
The officers of the corporation shall be a president, a secretary, a
treasurer, and such other officers with such titles and duties as may be
appointed in accordance with the provisions of Section 4.03. Any number of
offices may be held by the same person, except that the offices of president and
secretary shall not be held by the same person unless another person is then
elected and serving as an assistant secretary. The president shall be the chief
executive officer and the treasurer shall be the chief financial officer.
4.02 - ELECTION
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 4.03 or 4.05, shall be
chosen annually by the board of directors; and each officer shall hold his
office until he has resigned or removed or is otherwise disqualified to serve
and his successor has been elected and qualified.
4.03 - REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by a
majority of the directors at the time in office, at any regular or special
meeting of the board, or, except in the case of an officer chosen by the board
of directors, by any officer upon whom such power of removal may be conferred by
the board of directors.
Any officer may resign at any time by giving written notice to the
board of directors or to the president or to the secretary of the corporation.
Any such resignation shall take effect at the date of the receipt of such notice
or any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
4.04 - VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
4.05 - CHAIRMAN OF THE BOARD
The chairman of the board, if one has been appointed, shall, if
present, preside at all meetings of the board of directors and exercise and
perform all such other powers and duties as may from time to time be assigned to
him by the board of directors or prescribed by these bylaws.
4.06 - PRESIDENT
The president, subject to the board of directors, shall have general
supervision, direction and control of the business and of other officers and
employees of the corporation. He shall preside at all meetings of the
shareholders and, if there is no regular, appointed chairman of the board or if
such chairman is absent, at all meetings of the board of directors. He shall be
ex officio a member of all standing committees, including the executive
committee, if any, and shall have general powers and duties of management,
together with such other powers and duties as may be prescribed by the board of
directors.
-7-
<PAGE>
4.07 - SECRETARY
The secretary shall keep, or cause to be kept, a book of minutes at
the principal executive and business office, or such other place as the board of
directors may order, of all meetings of directors and shareholders, with the
time and place of holding, whether regular or special and, if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders' meetings
and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive and business office or at the office of the corporation's transfer
agent, a share register or a duplicate share register showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and the date of certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the board of directors required by these
bylaws or by law to be given, shall keep the seal of the corporation in safe
custody and shall have such other powers and shall perform such other duties as
may be prescribed by the board of directors or the bylaws.
4.08 - TREASURER
The chief financial officer shall be the treasurer. The treasurer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares.
The treasurer shall deposit all moneys and other valuables in the
name and to the credit of the corporation with such depositaries as may be
designated by the board of directors. He shall be responsible for the proper
disbursement of the funds of the corporation as may be ordered by the board of
directors and shall render to the president or directors, whenever they request
it, an account of all of his transactions as treasurer and of the financial
condition of the corporation. The treasurer shall prepare a proper annual budget
of income and expenses for each calendar year, revised quarterly, for approval
of or revision by the board of directors and shall be responsible for the
handling of finances in connection therewith. He shall have such other powers
and shall perform such other duties as may be prescribed by the board of
directors. He shall see that all officers signing checks are bonded in such
amounts as may be fixed from time to time by the board of directors.
4.09 - SUBORDINATE OFFICERS
The board of directors may appoint such vice presidents, assistant
treasurers and assistant secretaries and other subordinate officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in these
bylaws or as the board of directors may from time to time determine.
In the absence or disability of the president, treasurer or
secretary, the vice presidents, assistant treasurers and assistant secretaries,
respectively, in order of their rank as fixed by the board of directors or, if
not ranked, the subordinate officer designated by the board of directors shall
perform all the duties of such absent or disabled officer and, when so acting,
shall have all the powers of and be subject to all the restrictions upon such
officer. Each subordinate officer shall have such other powers and shall perform
such other duties as from time to time may be prescribed for him by the board of
directors or these bylaws.
ARTICLE V - SHARES OF STOCK
5.01 - SHARE CERTIFICATES
Certificates representing shares of the capital stock of the
corporation shall be in such form as shall be approved by the board of
directors, consistent with the articles of incorporation and the laws of the
State of California. A certificate or certificates for shares of the capital
stock of the corporation shall be issued to each shareholder when such shares
are fully paid, and the board of directors may authorize the issuance of
certificates or shares as partly paid provided that these certificates shall
state the amount of the consideration to be paid for them and the amount paid.
All such certificates shall be signed by (i) the chairman or vice chairman of
the board or the president or a vice president, and (ii) by the treasurer or an
assistant financial officer or the secretary or any assistant
-8-
<PAGE>
secretary, certifying the number of shares and the class or series of shares
issued to the shareholder and evidenced by such certificate. The corporation may
issue, sell or transfer fractional shares.
5.02 - TRANSFER OF SHARES
Subject to the provisions of applicable securities and other laws
and any other valid contractual and other restrictions on transfer of shares,
upon the surrender to the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
5.03 - LOST OR DESTROYED CERTIFICATE
The holder of any shares of stock of the corporation shall
immediately notify the corporation of any loss or destruction of the certificate
therefor, and the corporation may issue a new certificate in the place of any
certificate theretofore issued by it alleged to have been lost or destroyed,
upon approval of the board of directors. The board may, in its discretion, as a
condition to authorizing the issue of such new certificate, require the owner of
the lost or destroyed certificate, or his legal representative, to make proof
satisfactory to the board of directors of the loss or destruction thereof and to
give the corporation a bond or other security, in such amount and with such
surety or sureties as the board of directors may determine, as indemnity against
any claim that may be made against the corporation on account of any such
certificate so alleged to have been lost or destroyed.
ARTICLE VI - MISCELLANEOUS
6.01 - INDEMNITY OF OFFICERS, DIRECTORS, EMPLOYEES AND OTHER AGENTS
The corporation shall, to the maximum extent permitted by the
California General Corporation Law, have power to indemnify each of its agents
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact any such person is or was an agent of the corporation and shall have power
to advance to each such agent expenses incurred in defending any such proceeding
to the maximum extent permitted by that law. For purposes of this Section, an
"agent" of the corporation includes any person who (i) is or was a director,
officer, employee or other agent of the corporation, (ii) is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) was a director, officer, employee or agent of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.02 - SHAREHOLDER INSPECTION OF ARTICLES AND BYLAWS
The corporation shall keep at its principal executive and business
office the original or a copy of the articles of incorporation and the bylaws
and any amendments thereto, certified by the secretary, which shall be open to
inspection by shareholders at all reasonable times during office hours.
6.03 - MAINTENANCE AND INSPECTION OF RECORDS OF SHAREHOLDERS
The corporation shall keep at its principal executive and business
office or at the office of its transfer agent or registrar (if one has been
appointed), as determined by resolution of the board of directors, a record of
its shareholders, giving the names and addresses of all shareholders and the
number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at least 5%
in the aggregate of the outstanding voting shares of the corporation may (i)
inspect and copy the records of shareholders' names, addresses and
shareholdings, during usual business hours on five days' prior written demand on
the corporation, and (ii) obtain from the transfer agent of the corporation, on
written demand and on the tender of such transfer agent's usual charges for such
list, a list of the names and addresses of the shareholders who are entitled to
vote for the election of directors, and their shareholdings, as of the most
recent record date for which that list has been compiled or as of a date
specified by the shareholder after the date of demand. This list shall be made
available to any such shareholder or shareholders by the transfer agent on or
before the later of five days after the demand is received or the date
-9-
<PAGE>
specified in the demand as the date as of which the list is to be compiled. The
record of shareholders shall also be open to inspection on the written demand of
any shareholder or holder of a voting trust certificate, at any time during
usual business hours, for a purpose reasonably related to the holder's interests
as a shareholder or as the holder of a voting trust certificate. Any inspection
and copying under this Section may be made in person or by an agent or attorney
of the shareholder or holder of a voting trust certificate making the demand.
6.04 - SHAREHOLDER INSPECTION OF CORPORATE RECORDS
The accounting books and records and minutes of proceedings of the
shareholders and the board of directors and any committee or committees of the
board of directors shall be kept at such place or places designated by the board
of directors or, in the absence of such designation, at the principal executive
and business office of the corporation. The minutes shall be kept in written
form, and the accounting books and records shall be kept either in written form
or in any other form capable of being converted into written form. The minutes
and accounting books and records shall be open to inspection upon the written
demand of any shareholder or holder of a voting trust certificate, at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney and
shall include the right to copy and make extracts. These rights of inspection
shall extend to the records of each subsidiary corporation of the corporation.
6.05 - INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable time
to inspect all books, records and documents of every kind and the physical
properties of the corporation and each of its subsidiary corporations. This
inspection by a director may be made in person or by an agent or attorney, and
the right of inspection includes the right to copy and make extracts of
documents.
6.06 - CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable to the
corporation, shall be signed or endorsed by such person or persons and in such
manner as from time to time shall be determined by resolution of the board of
directors.
6.07 - EXECUTION OF INSTRUMENTS
Except as otherwise provided in these bylaws, the board of directors
may authorize one or more officers or agents to enter into any contract or
execute any instrument in the name of and on behalf of the corporation, which
authority may be general or confined to specific instances. Unless so authorized
by the board of directors, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit to render it liable for any purpose or to any amount.
6.08 - REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The president or, in the event of his absence or inability to serve,
any vice president and the secretary or assistant secretary of this corporation
are authorized to vote, represent and exercise, on behalf of this corporation,
all rights incidental to any and all shares of any other corporation standing in
the name of this corporation. The authority herein granted to such officers to
vote or represent on behalf of this corporation any and all shares held by this
corporation in any other corporation may be exercised either by such officers in
person or by any person authorized to do so by proxy or power of attorney duly
executed by such officers.
6.09 - ANNUAL REPORT
The annual report to shareholders referred to in Section 1501(a) of
the California Corporations Code is expressly waived subject to the limitations
thereof, but the board of directors of the corporation may cause to be sent to
the shareholders, not later than 120 days after the close of the fiscal or
calendar year, an annual report in such form as may be deemed appropriate by the
board of directors.
6.10 - ANNUAL STATEMENT OF GENERAL INFORMATION
-10-
<PAGE>
Within 90 days of incorporation and annually thereafter, the
corporation shall file with the Secretary of State, on the prescribed form, a
statement setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent directors, the names
and complete business or residence addresses of the chief executive officer,
secretary and chief financial officer, the street address of its principal
executive office or principal business office in this state, and the general
type of business constituting the principal business activity of the
corporation, together with a designation of the agent of the corporation for the
purpose of service of process, all in compliance with section 1502 of the
California Corporations Code.
ARTICLE VII - AMENDMENTS TO BYLAWS
7.01 - AMENDMENT BY SHAREHOLDERS
New bylaws may be adopted or these bylaws may be amended or repealed
by the vote or written consent of the shareholders entitled to exercise a
majority of the voting power of the corporation, except as otherwise provided by
either of these laws, these bylaws or the articles of the corporation; provided,
however, that if the articles of incorporation set forth the number of
authorized directors of the corporation, the authorized number of directors may
be changed only by an amendment of the articles of incorporation.
7.02 - AMENDMENT BY DIRECTORS
Subject to the rights of the shareholders as provided in Section
7.01 to adopt, amend or repeal bylaws, bylaws may be adopted, amended, or
repealed by the board of directors; provided, however, that the board of
directors may adopt a bylaw or amendment of a bylaw changing the authorized
number of directors only for the purpose of fixing the exact number of directors
within the limits specified in the articles of incorporation or in Section 3.02
of these bylaws.
-11-
<PAGE>
STATE OF CALIFORNIA
OFFICE OF
MARCH FONG EU
SECRETARY OF STATE
SACRAMENTO
I, MARCH FONG EU, Secretary of State of the State of California,
hereby certify:
That the annexed transcript of 1 page(s) was prepared by and in this
office from the record on file, of which it purports to be a copy, and that it
is full, true and correct.
IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the
Sate of California this May 29, 1986
/s/ March Fong Eu
- ------------------
March Fong Eu
Secretary of State
<PAGE>
STATE OF CALIFORNIA
CERTIFICATE OF LIMITED PARTNERSHIP - FORM LP-1 IMPORTANT -- Read Instructions
on back before completing this form
<TABLE>
<CAPTION>
<S> <C>
This Certificate is presented for filing pursuant to Chapter 3, Article 2,
Section 15621, California Corporations Code.
- --------------------------------------------------------------------------------------------------------------------
1. NAME OF LIMITED PARTNERSHIP
Shoreline Amphitheatre Partners, a California limited partnership
- --------------------------------------------------------------------------------------------------------------------
2. STREET ADDRESS OF PRINCIPAL EXECUTIVE 3. CITY AND STATE 4. ZIP CODE
OFFICE San Francisco, CA 94103
260 Fifth Street, 2nd Floor
- --------------------------------------------------------------------------------------------------------------------
5. STREET ADDRESS OF CALIFORNIA OFFICE IF 6. CITY 7. ZIP CODE
EXECUTIVE OFFICE IN ANOTHER STATE CALIF.
- --------------------------------------------------------------------------------------------------------------------
8. COMPLETE IF LIMITED PARTNERSHIP WAS FORMED PRIOR TO JULY 1, 1984 AND IS IN EXISTENCE ON DATE THIS CERTIFICATE
IS EXECUTED.
THE ORIGINAL LIMITED PARTNERSHIP CERTIFICATE WAS RECORDED ON ___________________________ 19 ____ WITH THE
RECORDER OF ___________________________________ COUNTY. FILE OR RECORDATION NUMBER ______________
- --------------------------------------------------------------------------------------------------------------------
9. NAMES AND ADDRESSES OF ALL GENERAL PARTNERS: (CONTINUE ON SECOND PAGE, IF NECESSARY)
NAME: Shoreline Amphitheatre, Ltd.
ADDRESS: 260 Fifth Street, 2nd Floor
CITY: San Francisco STATE California ZIP CODE 94103
- --------------------------------------------------------------------------------------------------------------------
9A.
NAME:
ADDRESS:
CITY: STATE ZIP CODE
- --------------------------------------------------------------------------------------------------------------------
9B.
NAME:
ADDRESS:
CITY: STATE ZIP CODE
- --------------------------------------------------------------------------------------------------------------------
10. NAME AND ADDRESS OF AGENT FOR SERVICE OF PROCESS
NAME: Nicholas P. Clainos
ADDRESS: 260 Fifth Street, 2nd Floor
CITY: San Francisco STATE California ZIP CODE 94103
- --------------------------------------------------------------------------------------------------------------------
11. TERM FOR WHICH THIS PARTNERSHIP IS TO EXIST
NOT LATER THAN DECEMBER 31, 2040
- --------------------------------------------------------------------------------------------------------------------
12. FOR THE PURPOSE OF FILING AMENDMENTS, DISSOLUTION AND CANCELLATION CERTIFICATES PERTAINING TO THIS
CERTIFICATE, THE
ACKNOWLEDGMENT OF I GENERAL PARTNERS IS REQUIRED.
- --------------------------------------------------------------------------------------------------------------------
13. ANY OTHER MATTERS THE GENERAL PARTNERS DESIRE TO INCLUDE IN THIS CERTIFICATE MAY BE NOTED ON SEPARATE PAGES
AND BY
REFERENCE HEREIN IS A PART OF THIS CERTIFICATE . NUMBER OF PAGES ATTACHED - 0
- --------------------------------------------------------------------------------------------------------------------
14. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS CERTIFICATE OF LIMITED PARTNERSHIP,
WHICH EXECUTION IS MY (OUR) ACT AND DEED (SEE INSTRUCTIONS)
- --------------------------------------------------------------------------------------------------------------------
- 2 -
<PAGE>
SHORELINE AMPHITHEATRE, LTD. 5/28/86 15. THIS SPACE
FOR FILING OFFICER
BY: /s/ Nicholas P. Clainos BY: _______________________________ USE (FILE NUMBER,
SIGNATURE OF GENERAL SIGNATURE OF GENERAL DATE OF
PARTNER DATE PARTNER DATE Filing)
Nicholas P. Clainos, President
BY: _______________________________ BY: _______________________________
SIGNATURE OF GENERAL SIGNATURE OF GENERAL
PARTNER DATE PARTNER DATE
BY: _______________________________ BY: _______________________________
SIGNATURE OF OTHER THAN GENERAL TITLE OR
PARTNER DESIGNATION
DATE
===============================================================================================
16. RETURN ACKNOWLEDGMENT TO:
NAME: Donald R. Share, Esq.
ADDRESS: GREENE, REDOVSKY, MALONEY & SHARE
CITY AND One Market Plaza
STATE Spear Street Tower, Suite 3200
ZIP CODE San Francisco, CA 94105
===============================================================================================
Form LP-1-- Filing Fee $70
APPROVED BY THE SECRETARY OF STATE
===============================================================================================
</TABLE>
STATE OF CALIFORNIA
Office of
March Fong Eu
Secretary of State
SACRAMENTO
I, MARCH FONG EU, Secretary of State of the State of
California, hereby certify:
That the annexed transcript of 1 page(s) was prepared by
and in this office from the record on file, of which it
purports to be a copy, and that it is full, true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix
the Great Seal of the State of
California this [SEAL] May 29,
1986
/s/ March Fong Eu
------------------
Secretary of State
(SEAL)
- 3 -
<PAGE>
ARTICLES OF INCORPORATION
OF
SJS ENTERTAINMENT CORPORATION
The undersigned, being a natural person of the age of 18
years or older, does hereby act as incorporator for the purpose of
incorporating a business corporation under the Business Corporation Law of
1988.
FIRST: The name of the corporation (hereinafter called the
"corporation") is SJS Entertainment Corporation.
SECOND: The address of initial registered office of the
corporation in the Commonwealth of Pennsylvania is c/o SJS Entertainment
Corporation, RR #1 Box 29J, Henryville, Pennsylvania 18332.
THIRD: The corporation is incorporated under the Business
Corporation Law of 1988.
FOURTH: The aggregate number of shares that the corporation
shall have authority to issue is 1,000, all of which are without par value,
and all of which are Common shares.
FIFTH: The name and address, including street and number, of
the incorporator are:
NAME ADDRESS
- ---- -------
Alice D. Kornfeld, Esq. Eisenberg Tanchum & Levy
675 Third Avenue, Suite 2900
New York, New York 10017
SIXTH: The corporation has as its purpose the engaging in
all lawful business for which corporations may be incorporated under the
Business Corporation Law of 1988.
SEVENTH:
1. The personal liability of the directors of the corporation
is limited to the fullest extent permitted by the provisions
of the Business Corporation Law of 1988, as the same may be
amended and supplemented.
2. The corporation shall, to the fullest extent permitted by
the provisions of the Business Corporation Law of 1988, as
the same may be amended and supplemented, indemnify any and
all persons whom it shall have power to indemnify under said
provisions from and against any and all of the expenses,
liabilities, or other matters
<PAGE>
referred to in or covered by said provisions, and the
indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may
be entitled under any Bylaw, vote of shareholders or
disinterested directors, or otherwise, both as to action in
his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
3. No shareholders shall have the right to cumulate his votes
in any election of directors.
4. Any action required or permitted to be taken at a meeting
of the shareholders may be taken without a meeting pursuant
to the provisions of Section 1766 of the Business Corporation
Law of 1988, as the same may be amended and supplemented,
upon the written consent of shareholders who would have been
entitled to cast the minimum number of votes that would be
necessary to authorize the action at a meeting at which all
shareholders entitled to vote thereon were present and voting.
EIGHTH: Each share of the corporation shall entitle the
holder thereof to a preemptive right, for a period of thirty days, to subscribe
for, purchase, or otherwise acquire any shares of the same class of the
corporation or any equity and/or voting shares of any class of the corporation
which the corporation proposes to issue or any rights or options which the
corporation proposes to grant for the purchase of shares of the same class of
the corporation or of equity and/or voting shares of any class of the
corporation or for the purchase of any shares, bonds, securities, or
obligations of the corporation which are convertible into or exchangeable for,
or which carry any rights, to subscribe for, purchase, or otherwise acquire
unissued shares of the same class of the corporation or equity and/or voting
shares of any class of the corporation, whether now or hereafter authorized or
created, and whether the proposed issue, reissue, or grant is for cash,
property, or any other lawful consideration; and after the expiration of said
thirty days, any and all of such shares, rights, options, bonds, securities, or
obligations of the corporation may be issued, reissued or granted by the Board
of Directors, as the case may be, to such individuals and entities, and for
such lawful consideration, and on such terms, as the Board of Directors in its
discretion may determine. As used herein, the terms "equity shares" and "voting
shares" shall mean, respectively, shares which confer unlimited dividend rights
and shares which confer unlimited voting rights in the election of one or more
directors.
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NINTH: The effective time and date of these Articles of
Incorporation shall be on filing.
Signed on 3 November, 1995.
/s/ Alice D. Kornfeld
---------------------------
Alice D. Kornfeld, Esq.
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BYLAWS OF
SJS ENTERTAINMENT CORPORATION
ARTICLE I
SHAREHOLDERS
1. Annual Meeting
A meeting of the shareholders shall be held annually for the
election of directors and the transaction of other business on such date in each
year as may be determined by the Board of Directors, but in no event later than
100 days after the anniversary of the date of incorporation of the Corporation.
2. Special Meetings
Special meetings of the shareholders may be called by the Board of
Directors, Chairman of the Board or President and shall be called by the Board
upon the written request of the holders of record of a majority of the
outstanding shares of the Corporation entitled to vote at the meeting requested
to be called. Such request shall state the purpose or purposes of the proposed
meeting. At such special meetings the only business which may be transacted is
that relating to the purpose or purposes set forth in the notice thereof.
3. Place of Meetings
Meetings of the shareholders shall be held at such place within or
outside of the Commonwealth of Pennsylvania as may be fixed by the Board of
Directors. If no place is so fixed, such meetings shall be held at the principal
office of the Corporation.
4. Notice of Meetings
Notice of each meeting of the shareholders shall be given in writing
and shall state the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called. Notice of a special meeting shall
indicate that it is being issued by or at the direction of the person or persons
calling or requesting the meeting.
If, at any meeting, action is proposed to be taken which, if taken,
would entitle objecting shareholders to receive payment for their shares, the
notice shall include a statement of that purpose and to that effect.
A copy of the notice of each meeting shall be given, personally or
by first class mail, not less than ten nor more than fifty days before the date
of the meeting, to each shareholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to have been given when deposited in the United
States mail, with postage thereon prepaid, directed to the shareholder at his
address as it appears on the record of the shareholders, or, if he shall have
filed with the Secretary of the Corporation a written request that notices to
him or her be mailed to some other address, then directed to him at such other
address.
When a meeting is adjourned to another time or place, it shall not
be necessary to give any notice of the adjourned meeting if the time and place
to which the meeting is adjourned are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may be transacted
that might have been transacted on the original date of the meeting. However, if
after the adjournment the Board of Directors fixes a new record date for
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the adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to notice under this
Section 4.
5. Waiver of Notice
Notice of a meeting need not be given to any shareholder who submits
a signed waiver of notice, in person or by proxy, whether before or after the
meeting. The attendance of any shareholder at a meeting, in person or by proxy,
without protesting prior to the conclusion of the meeting the lack of notice of
such meeting, shall constitute a waiver of notice by him or her.
6. Inspectors of Election
The Board of Directors, in advance of any shareholders' meeting, may
appoint one or more inspectors to act at the meeting or any adjournment thereof.
If inspectors are not so appointed, the person presiding at a shareholders'
meeting may, and on the request of any shareholder entitled to vote thereat
shall, appoint two inspectors. In case any person appointed fails to appear or
act, the vacancy may be filled by appointment in advance of the meeting by the
Board or at the meeting by the person presiding thereat. Each inspector, before,
entering upon discharge of his duties, shall take and sign an oath faithfully to
execute the duties of such inspector at such meeting with strict impartiality
and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum, and the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote at the meeting, count and tabulate all votes,
ballots or consents, determine the result thereof, and do such acts as are
proper to conduct the election or vote with fairness to all shareholders. On
request of the person presiding at the meeting, or of any shareholder entitled
to vote thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and shall execute a certificate of any
fact found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated and of any vote certified by them.
7. List of Shareholders at Meetings
A list of the shareholders as of the record date, certified by the
Secretary or any Assistant Secretary or by a transfer agent, shall be produced
at any meeting of the shareholders upon the request thereat or prior thereto of
any shareholder. If the right to vote at any meeting is challenged, the
inspectors of election, or the person presiding thereat, shall require such list
of the shareholders to be produced as evidence of the right of the persons
challenged to vote at such meeting, and all persons who appear from such list to
be shareholders entitled to vote thereat may vote at such meeting.
8. Qualification of Voters
Unless otherwise provided in the Certificate of Incorporation, every
shareholder of record shall be entitled at every meeting of the shareholders to
one vote for every share standing in its name on the record of the shareholders.
Treasury shares as of the record date and shares held as of the
record date by another domestic or foreign corporation of any kind, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held as of the record date by the Corporation, shall not be
shares entitled to vote or to be counted in determining the total number of
outstanding shares.
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Shares held by an administrator, executor, guardian, conservator,
committee or other fiduciary, other than a trustee, may be voted by such
fiduciary, either in person or by proxy, without the transfer of such shares
into the name of such fiduciary. Shares held by a trustee may be voted by him or
her, either in person or by proxy, only after the shares have been transferred
into his name as trustee or into the name of his nominee.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or proxy as
the bylaws of such corporation may provide, or, in the absence of such
provision, as the board of directors of such corporation may determine.
No shareholder shall sell his vote, or issue a proxy to vote, to any
person for any sum of money or anything of value except as permitted by law.
9. Quorum of Shareholders
The holders of a majority of the shares of the Corporation issued
and outstanding and entitled to vote at any meeting of the shareholders shall
constitute a quorum at such meeting for the transaction of any business,
provided that when a specified item of business is required to be voted on by a
class or series, voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum for the transaction of such
specified item of business.
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholders.
The shareholders who are present in person or by proxy and who are
entitled to vote may, by a majority of votes cast, adjourn the meeting despite
the absence of a quorum.
10. Proxies
Every shareholder entitled to vote at a meeting of the shareholders,
or to express consent or dissent without a meeting, may authorize another person
or persons to act for him by proxy.
Every proxy must be signed by the shareholder or its attorney. No
proxy shall be valid after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the shareholder executing it, except as otherwise provided by law.
The authority of the holder of a proxy to act shall not be revoked
by the incompetence or death of the shareholder who executed the proxy, unless
before the authority is exercised written notice of an adjudication of such
incompetence or of such death is received by the Secretary or any Assistant
Secretary.
11. Vote or Consent of Shareholders.
Directors, except as otherwise required by law, shall be elected by
a plurality of the votes cast at a meeting of shareholders by the holders of
shares entitled to vote in the election.
Whenever any corporate action, other than the election of directors,
is to be taken by vote of the shareholders, it shall, except as otherwise
required by law, be authorized by a majority of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote thereon.
Whenever shareholders are required or permitted to take any action
by vote, such action may be taken without a meeting on written consent, setting
forth the action so taken, signed by the holders of all outstanding shares
entitled to vote thereon. Written consent thus given by the holders of all
outstanding shares entitled to vote shall have the same effect as an unanimous
vote of shareholders.
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12. Fixing The Record Date
For the purpose of determining the shareholders entitled to notice
of or to vote at any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of any other action, the
Board of Directors may fix, in advance, a date as the record date for any such
determination of shareholders. Such date shall not be less than ten nor more
than fifty days before the date of such meeting, nor more than fifty days prior
to any other action.
When a determination of shareholders of record entitled to notice of
or to vote at any meeting of shareholders has been made as provided in this
Section, such determination shall apply to any adjournment thereof, unless the
Board of Directors fixes a new record date for the adjourned meeting.
ARTICLE II
BOARD OF DIRECTORS
1. Power of Board and Qualification of Directors
The business of the Corporation shall be managed by the Board of
Directors. Each director shall be at least eighteen years of age.
2. Number of Directors
The number of directors constituting the entire Board of Directors
shall be the number, not less than three nor more than ten, fixed from time to
time by a majority of the total number of directors which the Corporation would
have, prior to any increase or decrease, if there were no vacancies, provided,
however, that no decrease shall shorten the term of an incumbent director, and
provided further that if all of the shares of the Corporation are owned
beneficially and of record by less than three shareholders, the number of
directors may be less than three but not less than the number of shareholders.
Until otherwise fixed by the directors, the number of directors constituting the
entire Board shall be three.
3. Election and Term of Directors
At each annual meeting of shareholders, directors shall be elected
to hold office until the next annual meeting and until their successors have
been elected and qualified or until their death, resignation or removal in the
manner hereinafter provided.
4. Quorum of Directors and Action by the Board
A majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and, except where otherwise provided
herein, the vote of a majority of the directors present at a meeting at the time
of such vote, if a quorum is then present, shall be the act of the Board.
Any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consent thereto by the
members of the Board or committee shall be filed with the minutes of the
proceedings of the Board or committee.
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5. Meetings of the Board
An annual meeting of the Board of Directors shall be held in each
year directly after the annual meeting of shareholders. Regular meetings of the
Board shall be held at such times as may be fixed by the Board. Special meetings
of the Board may be held at any time upon the call of the President or any two
directors.
Meetings of the Board of Directors shall be held at such places as
may be fixed by the Board for annual and regular meetings and in the notice of
meeting for special meetings. If no place is so fixed, meetings of the Board
shall be held at the principal office of the Corporation. Any one or more
members of the Board of Directors may participate in meetings by means of a
conference telephone or similar communications equipment.
No notice need be given of annual or regular meetings of the Board
of Directors. Notice of each special meeting of the Board shall be given to each
director either by mail not later than noon, Pennsylvania time, on the third day
prior to the meeting or by telegram, written message or orally not later than
noon, Pennsylvania time, on the day prior to the meeting. Notices are deemed to
have been properly given if given: by mail, when deposited in the United States
mail; by telegram at the time of filing; or by messenger at the time of
delivery. Notices by mail, telegram or messenger shall be sent to each director
at the address designated by him for that purpose, or, if none has been so
designated, at his last known residence or business address.
Notice of a meeting of the Board of Directors need not be given to
any director who submits a signed waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to any director.
A notice, or waiver of notice, need not specify the purpose of any
meeting of the Board of Directors.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice of any
adjournment of a meeting to another time or place shall be given, in the manner
described above, to the directors who were not present at the time of the
adjournment and, unless such time and place are announced at the meeting, to the
other directors.
6. Resignations
Any director of the Corporation may resign at any time by giving
written notice to the Board of Directors or to the President or to the Secretary
of the Corporation. Such resignation shall take effect at the time specified
therein; and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective.
7. Removal of Directors
Any one or more of the directors may be removed for cause by action
of the Board of Directors. Any or all of the directors may be removed with or
without cause by vote of the shareholders.
8. Newly Created Directorships and Vacancies
Newly created directorships resulting from an increase in the number
of directors and vacancies occurring in the Board of Directors for any reason
except the removal of directors by shareholders may be filled by vote of a
majority of the directors then in office, although less than a quorum exists.
Vacancies occurring as a result of the removal of directors by shareholders
shall be filled by the shareholder. A director elected to fill a vacancy shall
be elected to hold office for the unexpired term of his predecessor.
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9. Executive and Other Committees of Directors
The Board of Directors, by resolution adopted by a majority of the
entire Board, may designate from among its members an executive committee and
other committees each consisting of three or more directors and each of which,
to the extent provided in the resolution, shall have all the authority of the
Board, except that no such committee shall have authority as to the following
matters: (a) the submission to shareholders of any action that needs
shareholders' approval; (b) the filling of vacancies in the Board or in any
committee; (c) the fixing of compensation of the directors for serving on the
Board or on any committee; (d) the amendment or repeal of the bylaws, or the
adoption of new bylaws; (e) the amendment or repeal of any resolution of the
Board which, by its term, shall not be so amendable or repealable; or (f) the
removal or indemnification of directors.
The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent member or
members at any meeting of such committee.
Unless a greater proportion is required by the resolution
designating a committee, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, and
the vote of a majority of the members present at a meeting at the time of such
vote, if a quorum is then present, shall be the act of such committee.
Each such committee shall serve at the pleasure of the Board of
Directors.
10. Compensation of Directors
The Board of Directors shall have authority to fix the compensation
of directors for services in any capacity.
11. Interest of Directors in a Transaction
Unless shown to be unfair and unreasonable as to the Corporation, no
contract or other transaction between the Corporation and one or more of its
directors, or between the Corporation and any other corporation, firm
association or other entity in which one or more of the directors are directors
or officers, or are financially interested, shall be either void or voidable,
irrespective of whether such interested director or directors are present at a
meeting of the Board of Directors, or of a committee thereof, which authorizes
such contract or transaction and irrespective of whether his or their votes are
counted for such purpose. In the absence of fraud any such contract and
transaction conclusively may be authorized or approved as fair and reasonable
by: (a) the Board of Directors or a duly empowered committee thereof, by a vote
sufficient for such purpose without counting the vote or votes of such
interested director or directors (although such interested director or directors
may be counted in determining the presence of a quorum at the meeting which
authorizes such contract or transaction), if the fact of such common
directorship, officership or financial interest is disclosed or known to the
Board or committee, as the case may be; or (b) the shareholders entitled to vote
for the election of directors, if such common directorship, officership or
financial interest is disclosed or know to such shareholders.
Notwithstanding the foregoing, no loan, except advances in
connection with indemnification, shall be made by the Corporation to any
director unless it is authorized by vote of the shareholders without counting
any shares of the director who would be the borrower or unless the director who
would be the borrower is the sole shareholder of the Corporation.
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ARTICLE III
OFFICERS
1. Election of Officers
The Board of Directors, as soon as may be practicable after the
annual election of directors, shall elect a President, a Secretary, and a
Treasurer, and from time to time may elect or appoint such other officers as it
may determine. Any two or more offices may be held by the same person, except
that the same person may not hold the offices of President and Secretary unless
the person is the sole shareholder of the Corporation and holding of said
offices of President and Secretary by such person is permitted under applicable
law. The Board of Directors may also elect one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers.
2. Other Officers
The Board of Directors may appoint such other officers and agents as
it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
3. Compensation
The salaries of all officers and agents of the Corporation shall be
fixed by the Board of Directors.
4. Term of Office and Removal
Each officer shall hold office for the term for which he is elected
or appointed, and until his successor has been elected or appointed and
qualified. Unless otherwise provided in the resolution of the Board of Directors
electing or appointing an officer, his term of office shall extend to and expire
at the meeting of the Board following the next annual meeting of shareholders.
Any officer may be removed by the Board with or without cause, at any time.
Removal of an officer without cause shall be without prejudice to his contract
rights, if any, and the election or appointment of an officer shall not of
itself create contract rights.
5. President
The President shall be the chief executive officer of the
Corporation, shall have general and active management of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall also preside at all
meetings of the shareholders and the Board of Directors.
The President shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
6. Vice Presidents
The Vice Presidents, in the order designated by the Board of
Directors, or in the absence of any designation, then in the order of their
election, during the absence or disability of or refusal to act by the
President, shall perform the duties and exercise the powers of the President and
shall perform such other duties as the Board of Directors shall prescribe.
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7. Secretary and Assistant Secretaries
The Secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose, and shall perform like duties for the standing committees when
required. The Secretary shall give or cause to be given, notice of all meetings
of the shareholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
President, 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 affix the same to any instrument
requiring it and when so affixed, it may be attested by the Secretary's
signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order designated by the Board of Directors, or in the absence
of such designation then in the order of their election, in the absence of the
Secretary or in the event of the Secretary's inability or refusal to act, shall
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
8. Treasurer and Assistant Treasurers
The Treasurer shall have the custody of the corporate funds and
securities; shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation; and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of the office of Treasurer, and for the restoration to the Corporation,
in the case of the Treasurer's death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in the possession or under the control of the Treasurer belonging to the
Corporation.
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order designated by the Board of Directors, or in
the absence of such designation, then in the order of their election, in the
absence of the Treasurer or in the event of the Treasurer's inability or refusal
to act, shall perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
9. Books and Records
The Corporation shall keep: (a) correct and complete books and
records of account; (b) minutes of the proceedings of the shareholders, Board of
Directors and any committees of directors; and (c) a current list of the
directors and officers and their residence addresses. The Corporation shall also
keep at its office in the Commonwealth of Pennsylvania or at the office of its
transfer agent or registrar in the Commonwealth of Pennsylvania, if any, a
record containing the names and addresses of all shareholders, the number and
class of shares held by each and the dates when they respectively became the
owners of record thereof.
The Board of Directors may determine whether and to what extent and
at what times and places and under what conditions and regulations any accounts,
books, records or other documents of the Corporation shall be open
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to inspection, and no creditor, security holder or other person shall have any
right to inspect any accounts, books, records or other documents of the
Corporation except as conferred by statute or as so authorized by the Board.
10. Checks, Notes, etc.
All checks and drafts on, and withdrawals from the Corporation's
accounts with banks or other financial institutions, and all bills of exchange,
notes and other instruments for the payment of money, drawn, made, endorsed, or
accepted by the Corporation, shall be signed on its behalf by the person or
persons thereunto authorized by, or pursuant to resolution of, the Board of
Directors.
ARTICLE IV
CERTIFICATES AND TRANSFERS OF SHARES
1. Forms of Share Certificates
The share of the Corporation shall be represented by certificates,
in such forms as the Board of Directors may prescribe, signed by the President
or a Vice President and the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer. The shares may be sealed 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 registered by a registrar other than the Corporation or its employee.
In case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if he
were such officer at the date of issue.
Each certificate representing shares issued by the Corporation shall
set forth upon the face or back of the certificate, or shall state that the
Corporation will furnish to any shareholder upon request and without charge, a
full statement of the designation, relative rights, preferences and limitations
of the shares of each class of shares, if more than one, authorized to be issued
and the designation, relative rights, preferences and limitations of each series
of any class of preferred shares authorized to be issued so far as the same have
been fixed, and the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of other series.
Each certificate representing shares shall state upon the face
thereof: (a) that the Corporation is formed under the laws of the Commonwealth
of Pennsylvania; (b) the name of the person or persons to whom issues; and (c)
the number and class of shares, and the designation of the series, if any, which
such certificate represents.
2. Transfers of Shares
Shares of the Corporation shall be transferable on the record of
shareholders upon presentment to the Corporation of a transfer agent of a
certificate or certificates representing the shares requested to be transferred,
with proper endorsement on the certificate or on a separate accompanying
document, together with such evidence of the payment of transfer taxes and
compliance with other provisions of law as the Corporation or its transfer agent
may require.
3. Lost, Stolen or Destroyed Share Certificates
No certificate for shares of the Corporation shall be issued in
place of any certificate alleged to have been lost, destroyed or wrongfully
taken, except, if and to the extent required by the Board of Directors upon: (a)
production of evidence of loss, destruction or wrongful taking; (b) delivery of
a bond indemnifying the Corporation and its agents against any claim that may be
made against it or them on account of the alleged loss, destruction or wrongful
taking of the replaced certificate or the issuance of the new certificate; (c)
payment of the expenses of the Corporation
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and its agents incurred in connection with the issuance of the new certificate;
and (d) compliance with other such reasonable requirements as may be imposed.
ARTICLE V
OTHER MATTERS
1. Corporate Seal
The Board of Directors may adopt a corporate seal, alter such seal
at pleasure, and authorize it to be used by causing it or a facsimile to be
affixed or impressed or reproduced in any other manner.
2. Fiscal Year
The fiscal year of the Corporation shall be the twelve months ending
December 31st, or such other period as may be fixed by the Board of Directors.
3. Amendments
Bylaws of the Corporation may be adopted, amended or repealed by
vote of the holders of the shares at the time entitled to vote in the election
of any directors. Bylaws may also be adopted, amended or repealed by the Board
of Directors, but any bylaws adopted by the Board may be amended or repealed by
the shareholders entitled to vote thereon as hereinabove provided.
If any bylaw regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of directors
the bylaw so adopted, amended or repealed, together with a concise statement of
the changes made.
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ARTICLES OF AMENDMENT
TO THE ARTICLES OF
INCORPORATION OF
PACE CONCERTS, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned, being an officer of PACE CONCERTS, INC.
("Corporation") executes the following Articles of Amendment to the
Corporation's Articles of Incorporation on behalf of said corporation.
1. The name of the Corporation is PACE CONCERTS, INC.
2. Article One of the Articles of Incorporation of the Corporation which
has heretofore read as follows:
"The name of the corporation is PACE CONCERTS, INC."
is hereby amended so as to read as follows:
"The name of the corporation is SM/PACE, INC."
3. The above amendment was adopted by unanimous consent of the
shareholders effective as of June 15, 1991.
4. As of the date of the adoption of the above amendment, 1,000 shares of
the corporation were outstanding and entitled to vote on the above amendment.
5. 1,000 shares voted for adoption of the above amendment and 0 shares
voted against adoption of the above amendment.
Dated effective as of June 30, 1991.
PACE CONCERTS, INC.
By: /s/ Jeffry B. Lewis
--------------------------
Name: Jeffry B. Lewis
Title: Secretary
<PAGE>
BYLAWS
OF
PACE CONCERTS, INC.
ARTICLE I
Section 1. The registered office of the corporation shall be located in
Harris County, Texas.
Section 2. The corporation may also have offices at such other places both
within or without the State of Texas as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
Section 1. All meetings of the shareholders for the election of directors
shall be held at such time and place, within or without the State of Texas, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. The annual meeting of the shareholders shall be held within
thirty (30) days of the close of the corporation's fiscal year.
Section 3. Notice of any meeting of Directors or shareholders may be
waived by written waiver of all persons entitled to vote therein. Unless so
waived, notice of any meeting shall be given to each person entitled to vote
thereon in writing, either personally, or by delivery to the address of such
person as indicated by the latest records of the corporation, not more than
thirty (30) days nor less than forty-eight (48) hours prior to the time set
forth such meeting.
ARTICLE III
Section 1. The management of the corporation shall be the duty of the
Board of Directors which shall exercise all powers and do all acts and things
not required by law to be done by the shareholders.
Section 2. The number of directors shall not be less than one nor more
than seven, none of whom need be shareholders or residents of any particular
state. Directors shall be elected at the annual meeting of shareholders and
shall hold office until the next annual meeting of shareholders. The number of
Directors may be increased or decreased at any meeting of the shareholders, but
no decrease in the number of Directors shall serve to shorten the term of any
incumbent Director. Any Director, or Directors, may, however, be removed with or
without cause at any meeting of shareholders by majority vote of the shares then
entitled to vote, provided that notice of the proposed action is given in the
notice or waiver of notice of such meeting. Election of Directors shall be by
plurality vote. Cumulative voting shall not be permitted.
Section 3. Meetings of the Board of Directors, regular or special, may be
held within or without the State of Texas. The annual meeting of the Board of
Directors shall take place immediately following the annual shareholders
meeting, at the same place, without further notice. Regular meetings of the
Board of Directors shall take place on the call of the President or any one
director.
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ARTICLE IV
Officers of the corporation shall be elected by the Board of Directors and
shall serve until removed by the Board of Directors. The officers of the
corporation shall be the President, the Secretary, and such other officers as
the Board of Directors shall elect, if any. Any person may hold two or more
offices.
ARTICLE V
Shares in the form prescribed by the Board of Directors shall be issued
for lawful consideration (not less than par value) and to such persons as the
Board of Directors may determine from time to time. In the absence of fraud, the
judgment of the Board of Directors as to the value received for shares issued
shall be conclusive.
ARTICLE VI
The corporation shall indemnify, to the extent permitted by Article 2.02-1
of the Texas Business Corporation Act, any person who is or was a director,
officer, agent or employee of the corporation.
APPROVED by the initial directors this 15th day of June, 1991.
ATTEST:
/s/ Jeffry B. Lewis
- --------------------------
Jeffry B. Lewis, Secretary
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<PAGE>
CERTIFICATE OF INCORPORATION
Stock Corporation
STATE OF CONNECTICUT
Secretary of the State
The undersigned incorporator hereby forms a corporation under the Stock
Corporation Act of the State of Connecticut:
1. The name of the corporation is Southeast Ticketing Company.
2. The nature of the business to be transacted, or the purposes to be
promoted or carried out by the corporation, are as follows:
To engage in computerized ticketing business in the State of Connecticut
or within 100 miles of Hartford, Connecticut.
3. The designation of each class of shares, the authorized number of
shares of each such class, and the par value (if any) of each share thereof, are
as follows:
The corporation has one class of 1,000 authorized shares of
common stock, with a par value of $1.00 per share.
4. The terms, limitations and relative rights and preferences of each
class of shares and series thereof (if any), or an express grant of authority to
the board of directors pursuant to Section 33-341, Conn. Gen. Stat., are as
follows:
No shareholder shall be entitled as of right to purchase or
subscribe for any unissued shares of the corporation whether now or
hereafter authorized or whether of a class now existing or of a
class hereafter created, or to purchase or subscribe for any bonds,
certificates of indebtedness, debentures, or other obligations
convertible into shares of the corporation.
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<PAGE>
5. The minimum amount of stated capitol with which the corporation shall
commence business is One Thousand Dollars ($1,000).
6. Any action that may be taken by shareholders at a meeting of
shareholders may be taken without a meeting of shareholders by consent, in
writing, setting forth the action to be taken, signed by persons (or their
authorized attorneys) holding shares representing at least that portion of the
voting power of shares entitled to vote on such action as would be required to
approve such action at a meeting at which all shareholders entitled to vote
thereon were present; provided, however, that the approval of such action by
consent is not prohibited by, and such consent is obtained in accordance with,
the general corporate law of Connecticut in effect at the time consent is
sought.
7. The personal liability of a director of the corporation to the
corporation or its shareholders for monetary damages for breach of duty as a
director of the corporation shall be limited to the full extent permitted by the
Stock Corporation Act of the State of Connecticut or any other applicable laws
presently or hereafter in effect. Without limiting the effect of the preceding
sentence, no director of the corporation shall be personally liable to the
corporation or any of its shareholders for monetary damages for breach of duty
as a director for the corporation in an amount greater than the compensation
received by the director for serving the corporation during the year of the
violation if such breach did not (i) involve a knowing and culpable violation of
law by the director; (ii) enable the director, or an associate, as defined in
subdivision (3) of Section 33-374d of the Stock Corporation Act of the State of
Connecticut to receive an improper personal economic gain; (iii) show a lack of
good faith and a conscious disregard for the duty of the director to the
corporation under circumstances in which the director was aware that his conduct
or omission created an unjustifiable risk of serious injury to the corporation;
(iv) constitute a sustained and unexcused pattern of inattention that amounted
to an abdication of the director's duty to the corporation; or (v) create
liability under Section 33-321 of the Stock Corporation Act of the State of
Connecticut.
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<PAGE>
Dated in Hartford, Connecticut this 15 day of December, 1994.
I hereby declare, under the penalties of false statement, that the
statements made in the foregoing certificate are true.
/s/ Karen A. Molitor
------------------------------------
Karen A. Molitor, Incorporator
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<PAGE>
BYLAWS OF SOUTHEAST TICKETING COMPANY
Adopted by the Incorporator on December 15, 1994.
ARTICLE I
Offices
Section 1.1
The principal office and other offices of the corporation shall be within
or without the State of Connecticut as the Board of Directors may determine or
as the business of the corporation may require.
ARTICLE II
Meetings of Shareholders
Section 2.1 Place of Meetings
Each meeting of the shareholders shall be held at the principal office of
the corporation or at such other place within or without the State of
Connecticut as the Board of Directors or other authority calling the meeting may
designate.
Section 2.2 Annual Meeting
An annual meeting of the shareholders to elect directors and to transact
other business shall be held at 3:00 p.m. on the second Monday in January, or at
such other date and time as the Board of Directors may designate.
Section 2.3 Special Meetings
A special meeting of the shareholders for any proper purpose or purposes
may be called by the President, or Board of Directors at such date and time as
the authority calling the meeting shall designate. The President shall call and
duly notice a special meeting of the shareholders within fifteen (15) days after
receiving a written request made by the holders of at least one-tenth of the
voting power of all shares entitled to vote at the meeting. Failing such, any of
the requesting holders may call and notice such meeting. Business transacted at
any special meeting of shareholders shall be limited to the purposes stated in
the notice of such meeting.
Section 2.4 Notice of Meetings and Waiver
Written notice of each meeting of the shareholders, stating the place,
date , time and purpose or purposes of the meeting shall be mailed, postage
prepaid, to each shareholder of record entitled to vote at each meeting. The
notice shall be mailed to each shareholder at his last known address as it
appears on the stock records of the corporation not less than seven (7) nor more
than fifty (50) days before the meeting.
At an annual meeting of shareholders, any matter relating to the affairs
of the corporation may be brought up for action except the following matters
which may only be acted upon if stated in the meeting notice: (1) adoption,
amendment or repeal of bylaws, and (2) matters, other than election of
directors, for which a vote of shareholders is expressly required by the
Connecticut General Statutes.
Notice of any shareholders' meeting may be waived in writing, either
before or after the meeting, by the person or persons entitled to receive such
notice. Any shareholder who attends a meeting in person without protesting the
lack
<PAGE>
of proper notice prior to the commencement thereof shall be deemed to have
waived notice of such meeting. The Secretary shall cause any written waiver of
notice to be filed with the records of the meeting.
Section 2.5 Quorum
The holders of a majority of the shares entitled to vote at any meeting of
the shareholders shall constitute a quorum for such meeting. If less than a
majority of the shares entitled to vote shall be represented at any meeting , a
majority of shares in fact represented may adjourn the meeting from time to time
without further notice.
Section 2.6 Proxies
At any meeting of the shareholders, any shareholder entitled to vote may
do so in person or by one or more agents authorized by a written, dated proxy
executed by such shareholder and filed with the Secretary of the corporation
before or at the time of the meeting. The corporation shall treat any such proxy
which has been duly executed and filed with the Secretary as effective until it
receives (i) a duly executed written instrument revoking it, (ii) a duly
executed proxy bearing a later date, or (iii) written notice of the death or
incapacity of the person who executed the proxy. No proxy shall be valid for
more than eleven (11) months after its execution unless otherwise provided
therein and in no event, except in the case of an irrevocable proxy, shall a
proxy be valid for more than ten (10) years after its execution.
Section 2.7 Voting List
At least five days before each meeting of the shareholders for which
notice is given, the Secretary of the corporation shall make or cause to be
made, a complete alphabetical list or record of the shareholders entitled to
vote at the meeting, showing the last known address of and the number of shares
held by each. Such list shall be kept available for inspection at the principal
office of the corporation for the five days prior to the meeting and at the
meeting.
Section 2.8 Voting
Except to the extent that voting rights of shares of any class are
increased, limited or denied by the Certificate of Incorporation, each
outstanding share shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
A majority of votes represented at any meeting of the shareholders and
entitled to vote on an issue shall decide such issue except when a greater vote
is required by law, by the Certificate of Incorporation or by these Bylaws.
Section 2.9 Transaction of Business without Meetings
Any action that may be taken by the shareholders at a meeting of the
shareholders may be taken without a meeting by consent, in writing, setting
forth the action to be taken, signed by shareholders (or their authorized
attorneys) holding shares representing at least that portion of the voting power
of shares entitled to vote on such action as would be required to approve such
action at a meeting at which all shareholders entitled to vote thereon were
present; provided, however, that the approval of such action by consent is not
prohibited by, and such consent is obtained in accordance with, the general
corporate law of Connecticut in effect at the time such consent is sought. The
Secretary shall file such consent or consents with the minutes of meetings of
shareholders.
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ARTICLE III
Board of Directors
Section 3.1 General Authority
The business, property and affairs of the corporation shall be managed by
or under the direction of its Board of Directors.
Section 3.2 Number of Directorships
There shall be not fewer than three (3) nor more than five (5)
directorships; provided that at any time all the issued and outstanding shares
of the stock of the corporation are owned beneficially and of record by fewer
than three (3) shareholders, the number of directorships may be fewer than three
(3) but not fewer than the number of shareholders. Subject to the above, the
actual number of directorships for each year shall be fixed by resolution of the
shareholders or, in the absence thereof, shall be the number of directors
actually elected by the shareholders; provided that a reduction, by shareholder
resolution, of the number of directorships shall not remove any director
currently in office or shorten his term. It is not required that directors be
Connecticut residents or shareholders of the corporation.
Section 3.3 Election and Term of Office
Directors shall be elected by the shareholders at the first meeting of
shareholders held for such purpose and at each subsequent annual meeting of the
shareholders. Each director shall hold office for the term for which he or she
is elected and until his or her successor has been elected and qualified, except
that a director shall cease to be in office upon his or her death, resignation,
lawful removal or issuance of a court order decreeing that he or she is no
longer a director in office.
Section 3.4 Vacancies
The remaining directors, although less than a quorum, may fill any vacancy
in the Board of Directors other than one caused either by an increase in the
number of directorships or by a removal of a director by the shareholders. A
vacancy filled by the remaining directors shall be filled until the expiration
of the term of the director whose place is vacant or until a successor director
is elected by the shareholders, whichever occurs first.
Section 3.5 Meetings
(a) Regular Meetings. A regular meeting of the Board of directors shall be
held without notice immediately after and at the same place as the annual
meeting of the shareholders unless the Board of Directors shall have designated
another place, date and time for such meeting and all directors have been
notified of such other place, date and time. The Board of Directors may hold
additional regular meetings by a resolution establishing the place, date and
time thereof and may hold such meetings without further notice provided that a
copy of such resolution shall be given to each director at least three (3) days
prior to the holding of any regular meetings scheduled thereby.
(b) Special Meetings. Special meetings of the Board of Directors may be
held at any place, date and time when called by either the President or any two
directors. Notice of the place, date and time thereof shall be given to each
director at least three (3) days prior to such meeting, either orally or in
writing mailed to the director's last known address.
(c) Waiver of Notice. Notice of any meeting of the Board of Directors may
be waived in writing, either before or after the meeting, by the person or
persons entitled to such notice. Any Director who attends a meeting of the Board
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<PAGE>
of Directors without protesting the lack of proper notice prior to the
commencement thereof, shall be deemed to have waived notice of such meeting.
Section 3.6 Quorum
A majority of the directors shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless the act of a greater number is required by law
or by these Bylaws. If less than a quorum is present at a meeting, the majority
of the directors present may adjourn the meeting from time to time without
further notice.
Section 3.7 Transaction of Business without Meetings
If all the directors consent in writing to an action taken or to be taken
by the corporation and the number of such directors constitutes a quorum for the
action, such action shall have the same force and effect as if it had been
authorized at a meeting of the Board of Directors. The Secretary shall file each
such consent with the minutes of the meetings of the Board.
Section 3.8 Participation by Telephone
A director or a member of a committee of the Board of Directors may
participate in a meeting of the Board of Directors or of such committee by means
of conference telephone or similar communications equipment enabling all
directors or members of such Committee, as the case may be, to hear one another,
and participation in a meeting pursuant to this subsection shall constitute
presence in person at such meeting.
Section 3.9 Removal of Directors
Any director may be removed from office at any time, with or without
cause, by the affirmative vote of a majority of the shareholders entitled to
vote for the election of such director.
Section 3.10 Committees
The Board of Directors, by the affirmative vote of a majority of the
entire Board, may appoint an Executive Committee and such other committees
composed of two or more directors as the Board may deem proper. Such committee
shall have and may exercise all such authority of the Board of Directors as
shall be provided in such resolution.
Section 3.11 Committee Meetings
Meetings of the Executive Committee and of other committees of the Board
of Directors may be called by either the President or any of the members of such
committee upon at least one (1) day's written or oral notice of the place, date
and time. The notice need not state the purpose of such meeting. A majority of
the committee members shall constitute a quorum for the transaction of business,
and if a quorum exists, the action of the majority of those present shall at any
meeting shall be the action of the committee. Each committee shall keep minutes
of its proceedings.
Section 3.12 Compensation
The Board of Directors may set the compensation for directors, the
Chairman of the Board, the President, any Vice Presidents, the Secretary and the
Treasurer and may cause directors to be reimbursed for the reasonable expenses
incurred in connection with attendance at meetings of the Board of Directors and
committees thereof.
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<PAGE>
ARTICLE IV
Officers
Section 4.1 Election and Term of Office
At its first meeting and following each annual meeting of the
shareholders, the Board of Directors shall elect a President and a Secretary,
and at such meeting or any other meeting may elect a Chairman of the Board, one
or more Vice Presidents, a Treasurer and such other officers and assistant
officers as the Board of Directors may deem proper. The Chairman of the Board,
if any, shall be elected from the members of the Board of Directors. Any two or
more offices may be held by the same person except the offices of President and
Secretary. An officer's term of office shall end upon the election of his or her
successor. Any officer may be removed by the Board of Directors at any time,
with or without cause. A vacancy in any office may be filled by the Board of
Directors for the unexpired portion of the term thereof.
Section 4.2 Chairman of the Board
The Chairman of the Board, if any, shall preside at meetings of the
shareholders and the Board of Directors and shall have such other duties and
powers as may be assigned to him or her by the Board of Directors from time to
time.
Section 4.3 President
The President shall preside at meetings of the shareholders and the Board
of Directors in the absence of a/the Chairman of the Board, shall be the chief
operating officer of the corporation and shall have all the powers and duties as
from time to time may be assigned to him or her by the Board of Directors.
Section 4.4 The Vice Presidents
Any Vice President may be designated by the Board of Directors to perform
the duties of the President in case of absence, death or inability to act of
such officer. Each Vice President shall have such other and duties as may be
assigned to him or her from time to time by the President or the Board of
Directors.
Section 4.5 The Secretary
The Secretary shall keep the minutes of the meetings of the shareholders
and the Board of Directors, shall be the custodian of the corporate records and
the seal of the corporation, and shall perform all the duties incident to the
office of Secretary and such other duties as may be assigned to him or her from
time to time by the President or the Board of Directors.
Section 4.6 The Treasure
The Treasurer shall have charge and custody of and be responsible for the
cash, funds, notes and securities of the corporation and for the deposit of all
monies in the name of the corporation in such banks, trust companies, or other
depositories as shall be selected in accordance with the provisions of these
Bylaws, and shall perform all the duties incident to the office of Treasurer and
such other duties as may be assigned to him or her from time to time by the
President or the Board of Directors.
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Section 4.7 Assistant and Other Officers
Any Assistant Secretary or Assistant Treasurer, in the absence of the
Secretary or the Treasurer, respectively, shall perform the duties which such
officers are required to perform, and they and any other junior officers shall
have such other powers and duties as may be assigned to them from time to time
by the President or any designated superior officer.
ARTICLE V
Loans, Checks and Deposits
Section 5.1 Loans
No loans in excess of Twenty Thousand Dollars ($20,000) shall be
contracted on behalf of the corporation and no evidences of indebtedness in
excess of Twenty Thousand Dollars ($20,000) shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 5.2 Checks, Drafts, etc.
All checks, drafts or orders for the payment of money, notes, bills of
exchange and other evidence of indebtedness issued in the name of the
corporation shall be signed or endorsed with the signatures or facsimile
signatures of such officers or agents of the corporation as the Board of
Directors shall from time to time designate by name or title, or in lieu of any
action by the Board, as the President shall designate.
Section 5.3 Deposits
All funds of the corporation not otherwise employed shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies or other depositories as the Board of Directors may select or, in lieu
of any action by the Board of Directors, as the Treasurer may select.
ARTICLE VI
Stock
Section 6.1 Stock Certificates
Certificates representing shares of stock of the corporation shall be in
such form as the Board of Directors may determine, shall be signed by either the
President or a Vice President and by either the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary and shall bear the seal or
facsimile seal of the corporation; provided that, when any certificate is signed
by a transfer agent, transfer clerk or registrar on behalf of the corporation,
the signatures of such officers may be facsimiles thereof.
Section 6.2 Transfer of Stock
Shares of the common stock of the corporation shall be transferable only
on the books of the corporation by a written assignment signed by the holder of
record thereof, his or her legally constituted attorney or his or her legal
representative upon surrender of the certificate or certificates therefor.
The Board of Directors may make such additional rules and regulations as
it may deem expedient concerning the issuance, transfer and registration of
certificates for shares of stock of the corporation provided such shall not be
inconsistent with these Bylaws.
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Section 6.3 Declaration of Dividends; Dividend Record Date
Dividends may be declared within the discretion of the Board of Directors
as may be permitted by law. Whenever the Board of directors declares a dividend
payable to shareholders, it shall set a record date for the purpose of
determining the shareholders entitled to such dividend. Upon the close of
business on the record date, the Secretary of the corporation shall establish a
list of all shareholders entitled to such dividend.
Section 6.4 Lost, Stolen or Destroyed Certificates
The Board of Directors may, in case any share certificate is lost, stolen,
destroyed or mutilated, authorize the issuance of a replacement certificate upon
such proof, terms and conditions, including reasonable bonding or
indemnification of the corporation, as the Board shall determine.
ARTICLE V11
Miscellaneous
Section 7.1 Amendments
Except as is otherwise provided by law or in the Certificate of
Incorporation, these Bylaws may be amended or repealed or new bylaws may be
adopted, either by a unanimous vote of the directors, or by the affirmative vote
of the holders of two-thirds (2/3) of the shares of the common stock of the
corporation entitled to vote thereon. Bylaws adopted or amended by the Board of
Directors shall be subject to amendment or repeal by the shareholders. Bylaws
adopted by the shareholders, if the adopting resolution shall so expressly
state, may not be amended or repealed by the Board of Directors. This Section
may not be amended or repealed by the Board of Directors.
Section 7.2 Corporate Seal
The seal of the corporation shall have inscribed thereon the name of the
corporation, the word "Seal" and the word "Connecticut".
Section 7.3 Fiscal Year
The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
/s/ Karen A. Molitor
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Karen A. Molitor, Incorporator
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<PAGE>
ARTICLES OF INCORPORATION
OF
SOUTHERN PROMOTIONS, INC.
I.
The name of the Corporation is:
SOUTHERN PROMOTIONS, INC.
II.
The Corporation shall have perpetual duration.
III.
The Corporation is organized for the following purposes: To engage
in promotions, conventions, arrangements for meetings and consultation; to
invest, purchase or otherwise acquire; to own, hold use, maintain, service or
repair; and to sell, rent, lease, pledge, mortgage, exchange, export,
distribute, assign and otherwise dispose of, and generally to trade in and with
real estate, goods, wares, merchandise, commodities, articles of commerce and
property of every kind and description.
To do each and everything necessary, suitable or proper for the
accomplishment of any of the purposes or the attainment of any one or more of
the objects herein enumerated, or which shall at any time appear conducive to or
expedient for the protection or benefit of the Corporation.
<PAGE>
IN FURTHERANCE OF AND NOT IN LIMITATION of the general powers
conferred by the laws of the State of Georgia and the objects and purposes
herein set forth, it is expressly provided that to such extent as a corporation
organized under the Georgia Business Corporation Code may now or hereafter
lawfully do, the Corporation shall have power to do, either as principal or
agent and either alone or in connection with other corporations, firms or
individuals, all and everything necessary, suitable, convenient or proper for,
or in connection with, or incident to, the accomplishment of any of the purposes
or the attainment of any one or more of the objects herein enumerated, or
designed directly or indirectly to promote the interests of the Corporation or
to enhance the value of its properties; and in general to do any and all things
and exercise any and all powers, rights and privileges which a corporation may
now or hereafter be authorized to do or to exercise under the Georgia Business
Corporation Code or under any act amendatory thereof, supplemental thereto or
substituted therefor.
The foregoing provisions of this Article III shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specific purposes and powers herein specified shall,
except when otherwise provided in this Article III, be in no wise limited or
restricted by reference to, or inference from, the terms of any provision of
this or any other Article of these Articles of Incorporation.
IV.
The Corporation shall have authority to issue not more than
1,000,000 shares of common stock of $1.00 par value per share.
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The Corporation may purchase its own shares of capital stock out of
unreserved and unrestricted earned surplus and capital surplus available
therefor and as otherwise provided by law.
The Board of Directors may from time to time distribute to
shareholders out of capital surplus of the Corporation a portion of its assets,
in cash or in property.
V.
None of the holders of any stock of the Corporation of any kind,
class or series now or hereafter authorized shall have preemptive rights with
respect to any shares of capital stock of the Corporation of any kind, class or
series now or hereafter authorized.
VI.
The initial registered office of the Corporation shall be 3100
Equitable Building, 100 Peachtree Street, N.W., Atlanta, Fulton County, Georgia
30043. The initial registered agent of the Corporation shall be Harold E.
Abrams, whose address is 3100 Equitable Building, 100 Peachtree Street, N.W.,
Atlanta, Georgia 30043.
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VII.
The initial Board of Directors shall consist of one (1) member, who
shall be as follows:
S. Stephen Selig, III
1100 Spring Street, N.W.
Atlanta, Georgia 30367
VIII.
The name and address of the incorporator are:
Harold E. Abrams
3100 Equitable Building
100 Peachtree Street, N.W.
Atlanta, Georgia 30043
IX.
The Corporation shall not commence business until it shall have
received not less than $500.00 in payment for the issuance of shares of stock.
IN WITNESS WHEREOF, the undersigned executes these Articles of
Incorporation.
/s/ Harold E. Abrams
-------------------------------
HAROLD E. ABRAMS
Incorporator
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<PAGE>
BY-LAWS
OF
SOUTHERN PROMOTIONS, INC.
ARTICLE I
OFFICES
Section 1. Registered office. The registered office shall be
in the State of Georgia, County of Fulton.
Section 2. Other Offices. The corporation may also have
offices at such other places both within and without the State of Georgia as
the board of directors may from time to time determine and the business of the
corporation may require or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
Section 1. Annual Meetings. The annual meeting of the
shareholders of the corporation shall be held at the principal office of the
corporation or at such other place in the United States as may be determined by
the board of directors, at 10:00 a.m. on the last business day of the fifth
month following the close of each fiscal year or at such other time and date
prior thereto and following the close of the fiscal year as shall be determined
by the board of directors, for the purpose of electing directors and
transacting such other business as may properly be brought before the meeting.
Section 2. Special Meetings. Special meetings of the
shareholders shall be held at the principal office of the corporation or at
such other place in the United States as may be designated in the notice of
said meetings, upon call of the chairman of the board of directors or the
president and shall be called by the president or the secretary when so
directed by the board of directors or at the request in writing of shareholders
owning at least 50% of the issued and outstanding capital stock of the
corporation entitled to vote thereat. Any such request shall state the purposes
for which the meeting is to be called.
Section 3. Notice of Meetings. Written notice or every
meeting of shareholders, stating the place, date and hour of the meetings,
shall be given personally or by mail to each shareholder of record entitled to
vote at such meeting not less than 10 nor more than 50 days before the date of
the meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with first class postage thereon prepaid
addressed to the shareholder at his address as it appears on the corporation's
record of stockholders. Attendance of a shareholder at a meeting of
shareholders shall constitute a waiver of notice of such meeting and of all
objections to the place or time of meeting, or the manner in which it has been
called or convened, except when a shareholder attends a meeting solely for the
purpose of stating, at the beginning of the meeting, any such objection to the
transaction of any business. Notice need not be given to any shareholder who
signs a waiver of notice, in person or by proxy, either before or after the
meeting.
Section 4. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at all meetings of the shareholders except as otherwise provided by statute, by
the articles of incorporation, or by these by laws. If a quorum is not present
or represented at any meeting of the shareholders, a majority of the
shareholders entitled to vote thereat, present in person or represented by
proxy, may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at
<PAGE>
the meeting as originally notified. If the adjournment is for more than 30
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 shareholder
of record entitled to vote at the meeting.
Section 5. Order of Business. At the annual meeting of
shareholders the order of business shall be as follows:
1. Calling meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last
previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 6. Voting. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of law or
of the articles of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of the question.
Each shareholder shall at every meeting of the shareholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power registered in his name on the books of the corporation, but no proxy
shall be voted or acted upon after 11 months from its date, unless otherwise
provided in the proxy.
Section 7. Consent of Shareholders. Any action required or
permitted to be taken at any meeting of the shareholders may be taken without a
meeting if all of the shareholders consent thereto in writing, setting forth
the action so taken. Such consent shall have the same force and effect as a
unanimous vote of shareholders.
Section 8. List of Shareholders. The corporation shall keep
at its registered office or principal place of business, or at the office of
its transfer agent or registrar, a record of its shareholders, giving their
names and addresses and the number, class and series, if any, of the shares
held by each. The officer who has charge of the stock transfer books of the
corporation shall prepare and make, before every meeting of shareholders or any
adjournment thereof, a complete list of the shareholders entitled to vote at
the meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and the number and class and series, if any, of shares held by
each. The list shall be produced and kept open, at the time and place of the
meeting and shall be subject to inspection by any shareholder during the whole
time of the meeting for the purposes thereof. The said list may be the
corporation's regular record of shareholders if it is arranged in alphabetical
order or contains an alphabetical index.
ARTICLE III
DIRECTORS
Section 1. Powers. Except as otherwise provided by any legal
agreement among shareholders, the property, affairs and business of the
corporation shall be managed and directed by its board of directors, which may
exercise all powers of the corporation and do all lawful acts and things which
are not by law, by any legal agreement among shareholders, by the articles of
incorporation or by these bylaws directed or required to be exercised or done
by the shareholders.
Section 2. Number, Election and Term. The number of directors
which shall constitute the whole board shall be one (1). Provided, however, the
number of directors may be increased or decreased from time to time by the
board of directors by amendment of this by-law, but no decrease shall have the
effect of shortening the term of an incumbent director. The directors shall be
elected by plurality vote at the annual meeting of shareholders, except as
hereinafter provided, and each director elected shall hold office until his
successor is elected and qualified or until his
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earlier resignation, removal from office or death. Directors shall be natural
persons who have attained the age of 18 years, but need not be residents of the
State of Georgia or shareholders of the corporation.
Section 3. Vacancies. Vacancies, including vacancies
resulting from any increase in the number of directors, but not including
vacancies resulting from removal from office by the shareholders, may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and a director so chosen shall hold office until the
next annual election and until his successor is duly elected and qualified
unless sooner displaced. If there are no directors in office, then vacancies
shall be filled through election by the shareholders.
Section 4. Meetings and Notice. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Georgia. Regular meetings of the board of directors may be
held without notice at such time and place as shall from time to time be
determined by resolution of the board. Special meetings of the board may be
called by the chairman of the board or president or by any two directors on one
day's oral, telegraphic or written notice duly given or served on each director
personally, or three days' notice deposited, first class postage prepaid, in
the United States mail. Such notice shall state a reasonable time, date and
place of meeting, but the purpose need not be stated therein. Notice need not
be given to any director who signs a waiver of notice either before or after
the meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting and waiver of all objections to the place and time of
the meeting, or the manner in which it has been called or convened except when
the director states, at the beginning of the meeting, any such objection or
objections to the transaction of business.
Section 5. Quorum. At all meetings of the board a majority of
directors shall constitute a quorum for the transaction of business, and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the board, except as may be otherwise specifically
provided by law, by the articles of incorporation, or by these by-laws. If a
quorum shall not be present at any meeting of the board, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 6. Conference Telephone Meeting. Unless the articles
of incorporation or these by-laws otherwise provide, members of the board of
directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other. Participation in such a meeting shall constitute presence in
person.
Section 7. Consent of Directors. Unless otherwise restricted
by the articles of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board
or committee, as the case may be, consent thereto in writing, setting forth the
action so taken, and the writing or writings are filed with the minutes of the
proceedings of the board or committee. Such consent shall have the same force
and effect as a unanimous vote of the board.
Section 8. Committees. The board of directors may by
resolution passed by a majority of the whole board, designate from among its
members one or more committees, each committee to consist of two or more
directors. The board may designate one or more directors as alternate members
of any committee, who may replace any absent member at any meeting of such
committee. Any such committee, to the extent provided in the resolution, shall
have and may exercise all of the authority of the board of directors in the
management of the business and affairs of the corporation except that it shall
have no authority with respect to (1) amending the articles of incorporation or
these by-laws; (2) adopting a plan of merger or consolidation; (3) the sale,
lease, exchange or other disposition of all or substantially all of the
property and assets of the corporation; and (4) a voluntary dissolution of the
corporation or a revocation thereof. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the board of directors. A majority of each committee may determine its
action and may fix the time and places of its meetings, unless otherwise
provided by the board of directors. Each committee shall keep regular minutes
of its meetings and report the same to the board of directors when required.
Section 9. Removal of Directors. At any shareholders'
meeting with respect to which notice of such purpose has been given, any
director may be removed from office, with or without cause, by the vote of
shareholders
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representing a majority of the issued and outstanding capital stock entitled to
vote for the election of directors, and his successor may be elected at the
same or any subsequent meeting of shareholders; provided that to the extent any
vacancy created by such removal is not filled by such an election within 60
days after such removal, the remaining directors shall, by majority vote, fill
any such vacancy.
Section 10. Compensation of Directors. Directors shall be
entitled to such reasonable compensation for their services as directors or
members of any committee of the board as shall be fixed from time to time by
resolution adopted by the board, and shall also be entitled to reimbursement
for any reasonable expenses incurred in attending any meeting of the board or
any such committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be
chosen by the board of directors and shall be a president, a secretary and a
treasurer. The board of directors may also choose a chairman of the board one
or more vice-presidents, assistant secretaries and assistant treasurers. Any
number of offices, except the offices of president and secretary maybe held by
the same person. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 2. Compensation. The salaries of all officers and
agents of the corporation shall be fixed by the board of directors or a
committee or officer appointed by the board.
Section 3. Term of office. Unless otherwise provided by
resolution of the board to directors, the principal officers shall be chosen
annually by the board at the first meeting of the board following the annual
meeting of shareholders of the corporation, or as soon thereafter as is
conveniently possible. Subordinate officers may be elected from time to time.
Each officer shall serve until his successor shall have been chosen and
qualified, or until his death, resignation or removal.
Section 4. Removal. Any officer may be removed from office at
any time, with or without cause, by the board of directors whenever in its
judgment the best interest of the corporation will be served thereby.
Section 5. Vacancies. Any vacancy in an office resulting
from any cause may be filled by the board of directors.
Section 6. Powers and Duties. Except as hereinafter provided,
the officers of the corporation shall each have such powers and duties as
generally pertain to their respective offices, as well as such powers and
duties as from time to time may be conferred by the board of directors.
(a) President. The president shall be the chief
executive officer of the corporation, shall preside at all
meetings of the shareholders and (unless the board shall have
created an office of chairman of the board) the board of
directors, shall have general and active management of the
business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into
effect. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof
shall be expressly delegated by the board of directors to
some other officer or agent of the corporation.
(b) Vice-President. In the absence of the president
or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated,
or in the absence of any designation, then in the order of
their election) shall perform the duties of the president,
and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have
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such other powers as the board of directors may from time to
time prescribe.
(c) Secretary. The secretary shall attend all
meetings of the board of directors and all meetings of the
shareholders and record all the proceedings of the meetings
of the corporation and of the board of directors in a book to
be kept for that purpose and shall perform like duties for
the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the shareholders
and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall
be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or
by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to
affix the seal of the corporation and to attest the affixing
by his signature.
(d) Assistant Secretary. The assistant secretary or
if there be more than one, the assistant secretaries in the
order determined by the board of directors (or if there be no
such determination, then in the order of their election),
shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise
the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors
may from time to time prescribe.
(e) Treasurer. The treasurer shall have the custody
of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the
board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its
regular meetings, or when the board of directors so requires,
an account of all his transactions as treasurer and of the
financial condition of the corporation. If required by the
board of directors, he shall give the corporation a bond
(which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board
of directors for the faithful performance of the duties of
his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his
control belonging to the corporation.
(f) Assistant Treasurer. The assistant treasurer, or
if there shall be more than one, the assistant treasurers in
the order determined by the board of directors (or if there
be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the
event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 7. Voting Securities of Corporation. Unless otherwise
ordered by the board of directors, the president shall have full power and
authority on behalf of the corporation to attend and to act and vote at any
meetings of security holders of corporations in which the corporation may hold
securities, and at such meetings shall possess and may exercise any and all
rights and powers incident to the ownership of such securities which the
corporation might have possessed and exercised if it had been present. The
board of directors by resolution from time to time may confer like powers upon
any other person or persons.
ARTICLE V
CERTIFICATE
Section 1. Form of Certificate. Every holder of fully-paid
stock in the corporation shall be entitled
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to have a certificate in such form as the board of directors may from time to
time prescribe.
Section 2. Lost Certificates. The board of directors may
direct that a new certificate be issued in place of any certificate theretofore
issued by the corporation and alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 3. Transfers. (a) Transfers of shares of the capital
stock of the corporation shall be made only on the books of the corporation by
the registered holder thereof, or by his duly authorized attorney, or with a
transfer clerk or transfer agent appointed as provided in Section 5 of this
Article, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon.
(b) The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and for all other purposes, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
(c) Shares of capital stock may be transferred by delivery of
the certificates therefor, accompanied either by an assignment in writing on
the back of the certificates or by separate written power of attorney to sell,
assign and transfer the same, signed by the record holder thereof, or by his
duly authorized attorney-in-fact, but no transfer shall affect the right of the
corporation to pay any dividend upon the stock to the holder of record as the
holder in fact thereof for all purposes, and no transfer shall be valid, except
between the parties thereto, until such transfer shall have been made upon the
books of the corporation as herein provided.
(d) The board may, from time to time, make such additional
rules and regulations as it may deem expedient, not inconsistent with these
by-laws or the articles of incorporation, concerning the issue, transfer and
registra tion of certificates for shares of the capital stock of the
corporation.
Section 4. Record Date. In order that the corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the board of directors may fix,
in advance, a record date, which shall not be more than 50 days and, in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of and to vote at any meeting of shareholders, the record date shall be
at the close of business on the day next preceding the day on which the 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. If no record date is fixed for
other purposes, the record date shall be at the close of business on the day
next preceding the day on which the board of directors adopts the resolution
relating thereto. A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of
the meeting unless the board of directors shall fix a new record date for the
adjourned meeting.
Section 5. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents or one or more transfer
clerks and one or more registrars, and may require all certificates of stock to
bear the signature or signatures of any of them.
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ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the articles of incorporation, if
any, may be declared by the board of directors at any regular or special
meetings, pur suant to law. Dividends may be paid in cash, in property, or in
shares of the corporation's capital stock, subject to the provisions of the
articles of incorporation. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest
of the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 2. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
Section 3. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the words
"Corporate Seal" and "Georgia". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise. In the
event it is inconvenient to use such a seal at any time, the signature of the
corporation followed by the word "Seal" enclosed in parentheses shall be deemed
the seal of the corporation.
Section 4. Annual Statements. Not later than four months
after the close of each fiscal year, and in any case prior to the next annual
meeting of stockholders, the corporation shall prepare:
(1) A balance sheet showing in reasonable detail the
financial condition of the corporation as of the close of its fiscal year, and
(2) A profit and loss statement showing the results of its
operations during its fiscal year.
Upon written request, the corporation promptly shall mail to any shareholder of
record a copy of the most recent such balance sheet and profit and loss
statement.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right of Indemnification and Standards of Conduct.
Every person (and the heirs and legal representatives of such person) who is or
was a director or officer of this corporation or any other corporation of which
he served as such at the request of this corporation and of which this
corporation directly or indirectly is a shareholder or creditor, or in which,
or in the stocks, bonds, securities or other obligations of which it is in any
way interested, may in accordance with Section 2 hereof be indemnified for any
liability and expense that may be incurred by him in connection with or
resulting from any threatened, pending or completed action, suit or
proceedings, whether civil, criminal, administrative or investigative (whether
brought by or in the right of this corporation or otherwise), or in connection
with any appeal relating thereto, in which he may become involved, as a party
or prospective party or otherwise, by reason of his being or having been a
director or officer of this corporation or such other corporation, or by reason
of any action taken or not taken in his capacity as such director or officer or
as a member of any committee appointed by the board of directors of this
corporation to act for, in the interest of, or on behalf of this corporation,
whether or not he continues to be such at the time such liability or expense
shall have been incurred; provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
this corporation and, in addition, with respect to any criminal action or
proceeding, did not have reasonable cause to believe that his conduct was
unlawful. As used in this Article, the terms "liability" and "expense" shall
include, but shall not be limited to, counsel fees and disbursements and
amounts of judgments, fines or penalties, and amounts paid in
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compromise or settlement by a director or officer. The termination of any
claim, action, suit or proceeding, by judgment, order, compromise, settlement
(with or without court approval) or conviction or upon a plea of guilty or of
nolo contendere, or its equivalent, shall not create a presumption that a
director or officer did not meet the standards of conduct set forth in this
Section.
Section 2. Determination of Right of Indemnification. Every
person (and the heirs and legal representatives of such person) referred to in
Section 1 hereof who has been wholly successful, on the merits or otherwise,
with respect to any claim, action, suit or proceeding of the character
described in Section 1 hereof shall be entitled to indemnification as of right
without any further action or approval by the board of directors. Except as
provided in the immediately preceding sentence, any indemnification under
Section 1 next above shall be made at the discretion of this corporation, but
only if (a) the board of directors, acting by majority vote of a quorum
consisting of directors who were not parties to such claim, action, suit or
proceeding, present or voting, shall find that the director or officer has met
the standard of conduct set forth in Section 1 hereof, or (b) if no such quorum
of the board exists, independent legal counsel selected by any Judge of the
United States District Court for the Northern District of Georgia, Atlanta
Division, at the request of either the corporation or the person seeking
indemnification shall deliver to the corporation their written opinion that
such director or officer has met such standards, or (c) the holders of a
majority of stock then entitled to vote for the election of directors shall
determine by affirmative vote that such director or officer has met such
standards.
Notwithstanding the foregoing, no officer or director who was
or is a party to any action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was an
officer or director of this or such other corporation shall be indemnified in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to this corporation unless and except to the extent that the Court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability and in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court shall deem proper.
Section 3. Advance of Expenses. Expenses incurred with
respect to any claim, action, suit or proceeding of the character described in
Section 1 of this Article VII may be advanced by the corporation prior to the
final disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless it shall ultimately be determined that he
is entitled to indemnification under this Article.
Section 4. Rights of Indemnification Cumulative. The rights
of indemnification provided in this Article VII shall be in addition to any
rights to which any such director or officer or other person may otherwise be
entitled under any by-law, agreement, vote of shareholders, or otherwise, and
shall be in addition to the power of the corporation to purchase and maintain
insurance on behalf of any such director or officer or other person against any
liability asserted against him and incurred by him in such capacity, or arising
out of his status as such, regardless of whether the corporation would have the
power to indemnify him against such liability under this Article or otherwise.
Section 5. Statement to Stockholders. If any expenses or
other amounts are paid by way if indemnification, otherwise than by court order
or action by the shareholders or by an insurance carrier pursuant to insurance
maintained by the corporation, the corporation shall, not later than the next
annual meeting of shareholders unless such meeting is held within three months
from the date of such payment, and, in any event, within 15 months from the
date of such payment, send by first class mail to its shareholders of record at
the time entitled to vote for the election of directors a statement specifying
the persons paid, the amounts paid, and the nature and status at the time of
such payment of the litigation or threatened litigation.
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ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or
repeal the by-laws or adopt new by-laws by majority vote of all of the
directors, but any by-laws adopted by the board of directors may be altered,
amended or repealed and new by-laws adopted, by the shareholders by majority
vote of all of the shares having voting power.
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CERTIFICATE OF FORMATION
OF
SUNSHINE CONCERTS, L.L.C.
This Certificate of Formation of Sunshine Concerts, L.L.C.
(the "LLC"), dated as of June 5, 1997, is being duly executed and filed by
James G. Leyden, Jr., as an authorized person, to form a limited liability
company under the Delaware Limited Liability Company Act (6 Del. C. ss.
18-101, et seq.)
FIRST. The name of the linited liability company formed
hereby is Sunshine Concerts, L.L.C.
SECOND. The address of the registered office of the LLC in
the State of Delaware is c/o RL&F Service Corp., One Rodney Square, 10th
Floor, Tenth and King Streets, Wilmington, New Castle County, Delaware 19801.
THIRD. The name and address of the registered agent for
service of process on the LLC in the State of Delaware is RL&F Service Corp.,
One Rodney Square, 10th Floor, Tenth and King Streets, Wilmington, New Castle
County, Delaware 19801.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation as of the date first above written.
/s/ James G. Leyden, Jr.
---------------------------
Name: James G. Leyden, Jr.
Authorized Person
<PAGE>
CERTIFICATE OF INCORPORATION
OF
SUNSHINE DESIGNS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Sunshine Designs, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State of Delaware is
1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name
of the registered agent of the corporation in the State of Delaware at such
address is Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred. The par value of each
of such shares is one cent. All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator
is as follows:
NAME MAILING ADDRESS
- ---- ---------------
Deborah Goldman-Levi 150 East 58th Street, 19th Floor
New York, NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this corporation
under ss.291 of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under ss.279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this corporation as consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
EIGHTH: For the management of the business and for the
conduct of the affairs of the corporation, and in further definition,
limitation, and regulation of the powers of the corporation and of its
directors and of its stockholders or any class thereof, as the case maybe, it
is further provided:
<PAGE>
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the Bylaws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which
the corporation would have if there were no vacancies. No
election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have
been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of ss.109 of the General
Corporation Law of the State of Delaware, and, after the
corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the Bylaws of the corporation
may be exercised by the Board of Directors of the corporation;
provided, however, that any provision for the classification
of directors of the corporation for staggered terms pursuant
to the provisions of subsections (d) of ss.141 of the General
Corporation Law of the State of Delaware shall be set forth in
an initial Bylaw or in a Bylaw adopted by the stockholders
entitled to vote of the corporation unless provisions for such
classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the
holder thereof to notice of, and the right to vote at, any
meeting of stockholders. Whenever the corporation shall be
authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied
voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right
to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of ss.242 of
the General Corporation Law of the State of Delaware shall
otherwise require; provided, that no share of any such class
which is otherwise denied voting power shall entitle the
holder thereof to vote upon the increase to decrease in the
number of authorized shares of said class.
NINTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of ss.102 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented.
TENTH: The corporation shall, to the fullest extent permitted
by the provisions of ss.145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said sections from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions 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 all rights at any time conferred upon the stockholders of the corporation
by this certicate of incorporation are granted subject to the provisions of
this Article ELEVENTH.
Signed on April 22, 1997.
/s/ Deborah Goldman-Levi
--------------------------------------------
Deborah Goldman-Levi, Incorporator
- 2 -
<PAGE>
BY-LAWS
OF
SUNSHINE DESIGNS, INC.
------------------------------------
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be established
and maintained at and shall be the registered agent of the Corporation in charge
hereof.
1.2 Other Offices: The corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the corporation may
require, provided, however, that the corporation's books and records shall be
maintained at such place within the continental United States as the Board of
Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An annual
meeting of stockholders shall be held each year within five months after the
close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called by
the President or by the Chairman of
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the Board of Directors, or at the request in writing by stockholders of record
owning at least fifty percent (50%) of the issued and outstanding voting shares
of common stock of the corporation.
2.5 Notice of Meetings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders' meeting the Secretary shall
give to each stockholder of record entitled to vote at such meeting, written
notice, served personally by mail or by telegram, 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. Such notice, if mailed shall be deemed
to be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it appears
on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum. The withdrawal of any shareholder
after the commencement of a meeting shall have no effect on the existence of a
quorum, after a quorum has been established at such meeting.
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority of voting stockholders, present in person or by proxy,
may adjourn the meeting from time to time without notice other than announcement
at the meeting. In the absence of a quorum, the officer presiding thereat shall
have power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given except as provided in paragraph (d)
below and except where expressly required by law.
(c) At any adjourned session at which a quorum. shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President shall preside
at meetings of the stockholders. The Secretary shall act as secretary of the
meeting or if he is not present, then the presiding officer may appoint a person
to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise provided by
the Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
voting stock standing in his name on the books of the corporation on the record
date for the meeting. Except as otherwise provided by these by-laws, all
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<PAGE>
elections and questions shall be decided by the vote of a majority in interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting.
2.9 Proxies: Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before or
at the meeting; or if one or both inspectors so appointed shall refuse to serve
or shall not be present, such appointment shall be made by the officer presiding
at the meeting.
2.11 List of Stockholders: (a) At least ten days before every
meeting of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of at least
ten days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.12 Procedure at Stockholders' Meetings: Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure at
every meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meeting: Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting, may be taken without a meeting, without prior notice
and without a vote, if a consent 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. Prompt notice of the taking of the corporate
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<PAGE>
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs of the
corporation shall be managed by its Board of Directors which may exercise all
the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors: The
number of directors which shall constitute the Board of Directors shall be ( )
unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not be
stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any director may
resign his office at any time by delivering his resignation in writing to the
Chairman of the Board or to the President. It will take effect at the time
specified therein or, if no time is specified, it will be effective at the time
of its receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any
time by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of Directors
may hold their meetings, both regular and special, either within or outside the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required. If
the date designated for any regular meeting be a legal holiday, then the meeting
shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of the stockholders for
the election of officers and
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<PAGE>
the transaction of such other business as may come before it. If such meeting is
held at the place of the stockholders' meeting, no notice thereof shall be
required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or at
the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same not
later than the date before the meeting.
Unless required by law, such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting. Any and all business may be transacted at any meeting of the Board of
Directors. No notice of any adjourned meeting need be given. No notice to or
waiver by any director shall be required with respect to any meeting at which
the director is present.
3.5 Quorum and Action: Unless provided otherwise by law or by the
Certificate of Incorporation or these by-laws, a majority of the Directors shall
constitute a quorum for the transaction of business; but if there shall be less
than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. The vote of a majority of the Directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The President,
or, in his absence a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officer may appoint a
secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution or
resolutions passed by a majority of Directors, designate one or more committees,
each of such committees to consist of one or more Directors of the Corporation,
for such purposes as the Board shall determine. The
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<PAGE>
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.
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected officers of
the corporation shall be a President, a Treasurer and a Secretary, and such
other officers as the Board of Directors shall deem advisable. The officers
shall be elected by the Board of Directors at its annual meeting following the
annual meeting of the stockholders, to serve at the pleasure of the Board or
otherwise as shall be specified by the Board at the time of such election and
until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time,
and from time to time, additional officers or agents with such duties as it may
deem necessary or desirable. Such additional officers shall serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time has been specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be removed
at any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the Directors then
in office.
4.3 Duties: (a) President: The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall supervise and
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<PAGE>
control all the business and affairs of the corporation. He shall, when present,
preside at all meetings of the stockholders and of the Board of Directors. He
shall see that all orders and resolutions of the Board of Directors are carried
into effect (unless any such order or resolution shall provide otherwise), and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the Board of Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and custody
of and be responsible for all funds and securities of the Corporation; (2)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever; (3) deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by
resolution of the Board of Directors; and (4) in general perform all duties
incident to the office of treasurer and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors. He shall,
if required by the Board of Directors, give a bond for the faithful discharge of
his duties in such sum and with such surety or sureties as the Board of
Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of the
meetings of the stockholders, the Board of Directors, and all committees, if
any, of which a secretary shall not have been appointed, in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these by-laws and as required by law; (3) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents, the execution of which on behalf
of the corporation under its seal, is duly authorized; (4) keep a register of
the post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (5) have general charge of stock transfer books
of the Corporation; and (6) in general perform all duties incident to the office
of secretary and such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) Every holder of stock in the corporation
shall be entitled to have a certificate signed by, or in the name of, the
corporation by the President and by the Treasurer or the Secretary, certifying
the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued,
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it may be issued by the corporation with the same effect as if he were such
officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the holder
of such certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the corporation's books. The corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be made
on the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The
corporation may maintain one or more transfer offices or agencies where stock of
the corporation shall be transferable. The corporation may also maintain one or
more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record:
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order
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to make a determination of the stockholders for the purpose of any other lawful
action. Such record date in any case shall be not more than sixty days nor less
than ten days before the date of a meeting of the stockholders, nor more than
sixty days prior to any other action requiring such determination of the
stockholders. A determination of stockholders of record entitled to notice or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise order, the
President, the Secretary or the Treasurer shall have full power and authority,
on behalf of the corporation, to attend, act and vote at any meeting of the
stockholders of any corporation in which the corporation may hold stock, and at
such meeting to exercise any or all rights and powers incident to the ownership
of such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. The Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation:
(a) Any of the following officers, to wit: the President and
the Treasurer shall be, and they hereby are, authorized and empowered to
transfer, convert, endorse, sell, assign, set over and deliver any and all
shares of stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidence of indebtedness, or other securities now or hereafter
standing in the name of or owned by the corporation, and to make, execute and
deliver, under the seal of the corporation, any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority hereby
conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come, shall be
entitled, without further inquiry or investigation and
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regardless of the date of such certificate, to assume and to act in reliance
upon the assumption that the shares of stock or other securities named in such
instrument were theretofore duly and properly transferred, endorsed, sold,
assigned, set over and delivered by the corporation, and that with respect to
such securities the authority of these provisions of the by-laws and of such
officers is still in full force and effect.
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form and
shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the time,
place or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the holding
thereof, or actual attendance at the meeting in person or, in the case of any
stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving
of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its directors,
officers and employees to the fullest extent allowed by law, provided, however,
that it shall be within the discretion of the Board of Directors whether to
advance any funds in advance of disposition of any action, suit or proceeding,
and provided further that nothing in this Section 7.4 shall be deemed to obviate
the necessity of the Board of Directors to make any determination that
indemnification of the director, officer or employee is proper under the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.
7.5 Fiscal Year: Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the corporation shall end on .
By-Laws - 10
<PAGE>
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SUNSHINE DESIGN, L.P.
This Certificate of Limited Partnership of Sunshine Design, L.P. (the
"Limited Partnership") is being executed by the undersigned for the purpose of
forming a limited partnership pursuant to the Delaware Revised Uniform Limited
Partnership Act.
1. The name of the limited partnership is Sunshine Design, L.P..
2. The address of the registered office of the Limited Partnership in
Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The Limited
Partnership's registered agent at that address is Corporation Service Company.
3. The name and address of the general partner is:
NAME ADDRESS
- ---- -------
Sunshine Design, Inc. 150 East 58th Street, 19th Floor
New York, NY 10155
IN WITNESS WHEREOF, the undersigned, constituting the sole general
partner of the Limited Partnership, has caused this Certificate of Limited
Partnership to be duly executed as of June 10, 1997.
SUNSHINE DESIGN, L.P.
By: Sunshine Design, Inc.,
as General Partner
/s/ Robert F. X. Sillerman
By: ------------------------------------
Robert F. X. Sillerman
Executive Chairman
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SUNSHINE DESIGN, L.P.
This Amendment of Certificate of Limited Partnership of Sunshine
Design, L.P. (the "Limited Partnership") is being executed by the undersigned
for the purpose of amending the Certificate of Limited Partnership originally
filed with the State of Delaware on June 11, 1997, pursuant to the Delaware
Revised Uniform Limited Partnership Act.
1. Pursuant to the Delaware Revised Uniform Limited Partnership Act,
the Certificate of Limited Partnership is amended as follows:
The name of the Limited Partnership has been changed from Sunshine
Design, L.P. to Sunshine Designs, L.P.
IN WITNESS WHEREOF, the undersigned, constituting the sole general
partner of the Limited Partnership, has caused this Certificate of Amendment to
be duly executed as of October 14, 1997.
Sunshine Designs, Inc.
By: Sunshine Designs, Inc., as General Partner
/s/ Howard J. Tytel
By: --------------------------------------
Howard J. Tytel
Executive Vice President
<PAGE>
CERTIFICATE OF INCORPORATION
OF
SUNTEX ACQUISITION, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Suntex Acquisition, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State of Delaware is
1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name
of the registered agent of the corporation in the State of Delaware at such
address is Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred. The par value of each
of such shares is one cent. All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator
is as follows:
NAME MAILING ADDRESS
---- ---------------
Deborah Goldman-Levi 150 East 58th Street, 19th Floor
New York, NY 10155
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this corporation
under ss.291of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under ss.279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this corporation as consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
<PAGE>
EIGHTH: For the management of the business and for the
conduct of the affairs of the corporation, and in further definition,
limitation, and regulation of the powers of the corporation and of its
directors and of its stockholders or any class thereof, as the case may be, it
is further provided:
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the Bylaws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which
the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have
been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of ss.109 of the General
Corporation Law of the State of Delaware, and, after the
corporation has received any payment for any of its stock,
the power to adopt, amend, or repeal the Bylaws of the
corporation may be exercised by the Board of Directors of the
corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered
terms pursuant to the provisions of subsection (d) of ss.141
of the General Corporation Law of the State of Delaware shall
be set forth in an initial Bylaw or in a Bylaw adopted by the
stockhodlers entitled to vote of the corporation unless
provisions for such classification shall be set forth in this
certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the
holder thereof to notice of, and the right to vote at, any
meeting of stockholders. Whenever the corporation shall be
authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied
voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right
to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of ss.242 of
the General Corporation Law of the State of Delaware shall
otherwise require; provided, that no share of any such class
which is otherwise denied voting power shall entitle the
holder thereof to vote upon the increase to decrease in the
number of authorized shares of said class.
NINTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of ss.102 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented.
TENTH: The corporation shall, to the fullest extent permitted
by the provisions of ss. 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in
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<PAGE>
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
corporation by this certificate of incorporation are granted subject to the
provisions of this Article ELEVENTH.
Signed on April 22, 1997
/s/ Deborah Goldman-Levi
--------------------------------------
Deborah Goldman-Levi, Incorporator
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<PAGE>
BY-LAWS
OF
SUNTEX ACQUISITION, INC.
-----------------------------------------------------
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be established
and maintained at and shall be the registered agent of the Corporation in charge
hereof.
1.2 Other Offices: The corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the corporation may
require, provided, however, that the corporation's books and records shall be
maintained at such place within the continental United States as the Board of
Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An annual
meeting of stockholders shall be held each year within five months after the
close of the fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called by
the President or by the Chairman of the Board of Directors, or at the request in
writing by stockholders of record owning at least fifty (50%) percent of the
issued and outstanding voting shares of common stock of the corporation.
2.5 Notice of Meetings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders' meeting the Secretary shall
give to each stockholder of record entitled to vote at such meeting, written
notice, served personally by mail or by telegram, 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. Such notice, if mailed shall be deemed
to be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it appears
on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum. The withdrawal of any shareholder
after the commencement of a meeting shall have no effect on the existence of a
quorum, after a quorum has been established at such meeting.
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<PAGE>
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority of voting stockholders, present in person or by proxy,
may adjourn the meeting from time to time without notice other than announcement
at the meeting. In the absence of a quorum, the officer presiding thereat shall
have power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given except as provided in paragraph (d)
below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an 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 Chairman and Secretary of Meeting: The President, shall preside
at meetings of the stockholders. The Secretary shall act as secretary of the
meeting or if he is not present, then the presiding officer may appoint a person
to act as secretary of the meeting.
2.8 Voting by Stockholders: Except as may be otherwise provided by
the Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
voting stock standing in his name on the books of the corporation on the record
date for the meeting. Except as otherwise provided by these by-laws, all
elections and questions shall be decided by the vote of a majority in interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting.
2.9 Proxies: Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before or
at the meeting; or if one or both inspectors so appointed shall refuse to serve
or shall not be present, such appointment shall be made by the officer presiding
at the meeting.
2.11 List of Stockholders: (a)At least ten days before every meeting
of stockholders, the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of at least
ten days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
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<PAGE>
2.12 Procedure at Stockholders' Meetings: Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure at
every meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meetings: Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken it
any annual or special meeting, may be taken without a meeting, without prior
notice and without a vote, if a consent 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. 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 III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs of the
corporation shall be managed by its Board of Directors which may exercise all
the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors: The
number of directors which shall constitute the Board of Directors shall be ( )
unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not be
stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any director may
resign his office at any time by delivering his resignation in writing to the
Chairman of the Board or to the President. It will take effect at the time
specified therein or, if no time is specified, it will be effective at the time
of its receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any
time by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of Directors
may hold their meetings, both regular and special, either within or outside the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required. If
the date designated for any regular meeting be a legal holiday, then the meeting
shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of the stockholders for
the election of officers and the transaction of such other business as may come
before it. If such meeting is held at the place of the stockholders' meeting, no
notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or at
the written request of any one director.
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<PAGE>
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same not
later than the date before the meeting. Unless required by law, such notice need
not include a statement of the business to be transacted at, or the purpose of,
any such meeting. Any and all business may be transacted at any meeting of the
Board of Directors. No notice of any adjourned meeting need be given. No notice
to or waiver by any director shall be required with respect to any meeting at
which the director is present.
3.5 Quorum and Action: Unless provided otherwise by law or by the
Certificate of Incorporation or these by-laws, a majority of the Directors shall
constitute a quorum for the transaction of business; but if there shall be less
than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. The vote of a majority of the Directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The President,
or, in his absence a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officer may appoint a
secretary of the meeting.
3.7 Action by Consent Without Meeting: Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution or
resolutions passed by a majority of Directors designate one or more committees,
each of such committees to consist of one or more Directors of the Corporation,
for such purposes as the Board shall determine. 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.
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected officers of
the corporation shall be a President, a Treasurer and a Secretary, and such
other officers as the Board of Directors shall deem advisable. The officers
shall be elected by the Board of Directors at its annual meeting following the
annual meeting of the stockholders, to serve at the pleasure of the Board or
otherwise as shall be specified by the Board at the time of such election and
until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time,
and from time to time, additional officers or agents with such duties as it may
deem necessary or desirable. Such additional officers shall serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
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(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time has been specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be removed
at any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the Directors then
in office.
4.3 Duties: (a) President: The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall supervise and control all the business and affairs of the
corporation. He shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. He shall see that all orders and resolutions of
the Board of Directors are carried into effect (unless any such order or
resolution shall provide otherwise), and in general shall perform all duties
incident to the office of president and such other duties as may be prescribed
by the Board of Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and custody
of and be responsible for all funds and securities of the Corporation; (2)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever; (3) deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by
resolution of the Board of Directors; and (4) in general perform all duties
incident to the office of treasurer and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors. He shall,
if required by the Board of Directors, give a bond for the faithful discharge of
his duties in such sum and with such surety or sureties as the Board of
Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of the
meetings of the stockholders, the Board of Directors, and all committees, if
any, of which a secretary shall not have been appointed, in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these by-laws and as required by law; (3) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents, the execution of which on behalf
of the corporation under its seal, is duly authorized; (4) keep a register of
the post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (5) have general charge of stock transfer books
of the Corporation; and (6) in general perform all duties incident to the office
of secretary and such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) Every holder of stock in the corporation
shall be entitled to have a certificate signed by, or in the name of, the
corporation by the President and by the Treasurer or the Secretary, certifying
the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
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(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the holder
of such certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the corporation's books. The corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be made
on the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The
corporation may maintain one or more transfer offices or agencies where stock of
the corporation shall be transferable. The corporation may also maintain one or
more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record:
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall be not more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination of the stockholders. A determination of
stockholders of record entitled to notice or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
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ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise order, the
President, the Secretary or the Treasurer shall have full power and authority,
on behalf of the corporation, to attend, act and vote at any meeting of the
stockholders of any corporation in which the corporation may hold stock, and at
such meeting to exercise any or all rights and powers incident to the ownership
of such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. The Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held By the
Corporation.
(a) Any of the following officers, to wit: the President and
the Treasurer shall be, and they hereby are, authorized and empowered to
transfer, convert, endorse, sell, assign, set over and deliver any and all
shares of stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidence of indebtedness, or other securities now or hereafter
standing in the name of or owned by the corporation, and to make, execute and
deliver, under the seal of the corporation, any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority hereby
conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come, shall be
entitled, without further inquiry or investigation and regardless of the date of
such certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the corporation, and that with respect to such securities the authority of
these provisions of the by-laws and of such officers is still in full force and
effect.
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form and
shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the time,
place or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the holding
thereof, or actual attendance at the meeting in person or, in the case of any
stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving
of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its directors,
officers and employees to the fullest extent allowed by law, provided, however,
that it shall be within the discretion of the Board of Directors whether to
advance any funds in advance of disposition of any action, suit or proceeding,
and provided further that nothing in this section 7.4 shall be deemed to obviate
the necessity of the Board of Directors to make any determination that
indemnification of the director, officer or employee is proper under the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.
- 7 -
<PAGE>
7.5 Fiscal Year: Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the corporation shall end on
- 8 -
<PAGE>
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SUNTEX ACQUISITION, L.P.
This Certificate of Limited Partnership of Suntex Acquisition, L.P. (the
"Limited Partnership") is being executed by the undersigned for the purpose of
forming a limited partnership pursuant to the Delaware Revised Uniform Limited
Partnership Act.
1. The name of the limited partnership is Suntex Acquisition, L.P.
2. The address of the registered office of the Limited Partnership in
Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The Limited
Partnership's registered agent at that address is Corporation Service Company.
3. The name and address of the general partner is:
NAME ADDRESS
---- -------
Suntex Acquisitions, Inc. 150 East 58th Street, 19th Floor
New York, NY 10155
IN WITNESS WHEREOF, the undersigned, constituting the sole general partner
of the Limited Partnership, has caused this Certificate of Limited Partnership
to be duly executed as of June 10, 1997.
SUNTEXT ACQUISITION, L.P.
By: Suntex Acquisition, Inc.,
as General Partner
By: /s/ Robert F.X. Sillerman
-----------------------------
Robert F.X. Sillerman
Executive Chairman
<PAGE>
OFFICERS CERTIFICATE
BARRY FIEDEL, President, JOHN ANTOON, Secretary and NEAL JOSEPH,
Chief Financial Officer certify that:
On the lst day of June, 1979, with the approval of the board of
directors of The Confidential Album Report, Inc., a California corporation,
the Articles of Incorporation were amended as follows:
ARTICLE I is amended as follows:
"The name of this corporation is THE
ALBUM NETWORK, INC., a California
corporation."
No shares have been issued.
The undersigned declare under penalty of perjury that the matters set
forth in the foregoing are true and correct of their own knowledge.
Executed at Los Angeles, California this 22nd day of June, 1979.
/s/ Barry A. Fiedel
----------------------------------------
Barry A. Fiedel, President
/s/ John C. Antoon
----------------------------------------
John Antoon, Secretary
/s/ Neal Joseph
----------------------------------------
Neal Joseph, Chief Financial Officer
<PAGE>
ARTICLES OF INCORPORATION
OF
THE CONFIDENTIAL ALBUM REPORT, INC.
I
The name of this corporation is THE CONFIDENTIAL ALBUM REPORT, INC.
II
The purpose of this corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust
company business, or the practice of a profession permitted to be incorporated
by the California Corporations Code.
III
The name and address in the State of California of this
corporation's initial agent for service of process is: JOHN J. ALTENBURG, 9777
Wilshire Boulevard, Suite 607, Beverly Hills, California 90212.
IV
This corporation is authorized to issue only one class of
shares of stock; and the total number of shares which this corporation is
authorized to issue is One Million.
Dated: May 25, 1978
/s/ John J. Altenburg
-------------------------------
John J. Altenburg
Incorporator
<PAGE>
I hereby declare that I am the person who executed the
foregoing Articles of Incorporation, which execution is my act and deed.
/s/ John J. Altenburg
------------------------
John J. Altenburg
-2-
<PAGE>
BYLAWS OF
THE ALBUM NETWORK, INC.
a California corporation
(A California corporation)
ARTICLE I.
SHAREHOLDERS' MEETINGS
Section 1 TIME. An annual meeting for the election of directors and for the
transaction of any other proper business and any special meeting shall be held
on the date and at the time as the Board of Directors shall from time to time
fix.
Time of meeting: 7:00 o'clock P.M. Date of Meeting: The 13th day of June.
Section 2. PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of California, as the Directors may, from
time to time, fix. Whenever the Directors shall fail to fix such place, the
meetings shall be held at the principal executive office of the corporation.
Section 3. CALL. Annual meetings may be called by the Directors, by the Chairman
of the Board, if any, Vice Chairman of the Board, if any, the President, if any,
the Secretary, or by any officer instructed by the Directors to call the
meeting. Special meetings may be called in like manner and by the holders of
shares entitled to cast not less than ten percent of the votes at the meeting
being called.
Section 4. NOTICE. Written notice stating the place, day and hour of each
meeting, and, in the case of a special meeting, the general nature of the
business to be transacted or, in the case of an Annual Meeting,' those matters
which the Board of Directors, at the time of mailing of the notice, intends to
present for action by the shareholders, shall be given not less than ten days
(or not less than any such other minimum period of days as may be prescribed by
the General Corporation Law) or more than sixty days (or more than any such
maximum period of days as may be prescribed by the General Corporation Law)
before the date of the meeting, by mail, personally, or by other means of
written communication, charges prepaid by or at the direction of the Directors,
the President, if any, the Secretary or the officer or persons calling the
meeting, addressed to each shareholder at his address appearing on the books of
the corporation or given by him to the corporation for the purpose of notice,
or, if no such address appears or is given, at the place where the principal
executive office of the corporation is located or by publication at least once
in a newspaper of general circulation in the county in which the said principal
executive office is located. Such notice shall be deemed to be delivered when
deposited in the United States mail, with first class postage therein prepaid,
or sent by other means of written communication addressed to the shareholder at
his address as it appears on the stock transfer books of the corporation. The
notice of any meeting at which directors are to be elected shall include the
names of nominees intended at the time of notice to be presented by management
for election. At an annual meeting of shareholders, any matter relating to the
affairs of the corporation, whether or not stated in the notice of the meeting,
may be brought up for action except matters which the General Corporation Law
requires to be stated in the notice of the meeting. The notice of any annual or
special meeting shall also include, or be accompanied by, any additional
statements, information, or documents prescribed by the General Corporation Law.
When a meeting is adjourned to another time or place, notice of the adjourned
meeting need not be given if the time and place thereof are announced at the
meeting at which the adjournment is taken; provided that, 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 shareholder. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting.
Section 5. CONSENT. The transaction of any meeting, however called and noticed,
and wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum is present and if, either before or after
the meeting, each of the shareholders or his proxy signs a written waiver of
notice or a consent to the holding of the meeting or an approval of the minutes
thereof. All such waivers, consents and approvals shall be filed with the
<PAGE>
corporate records or made a part of the minutes of the meeting. Attendance of a
person at a meeting constitutes a waiver of notice of such meeting, except when
the person objects, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened and except that
attendance at a meeting shall not constitute a waiver of any right to object to
the consideration of matters required by the General Corporation Law to be
included in the notice if such objection is expressly made at the meeting.
Except as otherwise provided in subdivision (f) of Section 601 of the General
Corporation Law, neither the business to be transacted at nor the purpose of any
regular or special meeting need be specified in any written waiver of notice.
Section 6. CONDUCT OF MEETING. Meetings of the shareholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting -- the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, if any, a Vice President, or, if none of the foregoing is
in office and present and acting, by a chairman to be chosen by the
shareholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but, if neither the
Secretary nor an Assistant Secretary is present, the Chairman of the meeting
shall appoint a secretary of the meeting.
Section 7. PROXY REPRESENTATION. Every shareholder may authorize another person
or persons to act as his proxy at a meeting or by written action. No proxy shall
be valid after the expiration of eleven months from the date of its execution
unless otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the person executing it prior to the vote or written action pursuant
thereto, except as otherwise provided by the General Corporation Law. As used
herein, a "proxy" shall be deemed to mean a written authorization signed by a
shareholder or a shareholder's attorney in fact giving another person or persons
power to vote or consent in writing with respect to the shares of such
shareholder, and "Signed" as used herein shall be deemed to mean the placing of
such shareholder's name on the proxy, whether by manual signature, typewriting,
telegraphic transmission or otherwise by such shareholder or such shareholder's
attorney in fact. Where applicable, the form of any proxy shall comply with the
provisions of Section 604 of the General Corporation Law.
Section 8. INSPECTORS - APPOINTMENT. In advance of any meeting, the Board of
Directors may appoint inspectors of election to act at the meeting and any
adjournment thereof. If inspectors of election are not so appointed, or, if any
persons so appointed fail to appear or refuse to act, the Chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election, or persons to replace
any of those who so fail or refuse, at the meeting. The number of inspectors
shall be either one or three. If appointed at a meeting on the request of one or
more shareholders or proxies, the majority of shares represented shall determine
whether one or three inspectors are to be appointed. The inspectors of election
shall determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the
authenticity, validity, and effect of proxies, receive votes, ballots, if any,
or consents, hear and determine all challenges and questions in any way arising
in connection with the right to vote, count and tabulate all votes or consents,
determine when the polls shall close, determine the result, and do such acts as
may be proper to conduct the election or vote with fairness to all shareholders.
If there are three inspectors of election, the decision, act, or certificate of
a majority shall be effective in all respects as the decision, act, or
certificate of all.
Section 9. SUBSIDIARY CORPORATIONS. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. A subsidiary for these
purposes is defined as a corporation, the shares of which possessing more than
25% of the total combined voting power of all classes of shares entitled to
vote, are owned directly or indirectly through one or more subsidiaries.
Section 10. QUORUM; VOTE; WRITTEN CONSENT. The holders of a majority of the
voting shares shall constitute a quorum at a meeting of shareholders for the
transaction of any business. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment notwithstanding the withdrawal of enough shareholders to leave less
than a quorum if any action taken, other than adjournment, is approved by at
least a majority of the shares required to constitute a quorum. In the absence
of a quorum, any meeting of
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shareholders may be adjourned from time to time by the vote of a majority of the
shares represented thereat, but no other business may be transacted except as
hereinbefore provided.
In the election of directors, a plurality of the votes cast shall elect.
No shareholder shall be entitled to exercise the right of cumulative voting at a
meeting for the election of directors unless the candidate's name or the
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
such candidates in nomination.
Except as otherwise provided by the General Corporation Law, the Articles
of Incorporation or these By-Laws, any action required or permitted to be taken
at a meeting at which a quorum is present shall be authorized by the affirmative
vote of a majority of the shares represented at the meeting.
Except in the election of directors by written consent in lieu of a
meeting, and except as may otherwise be provided by the General Corporation Law,
the Articles of Incorporation or these By-Laws, any action which may be taken at
any annual or special meeting may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken, shall be
signed by holders of shares 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. Directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors. Notice of any shareholder
approval pursuant to Section 310, 317, 1201 or 2007 without a meeting by less
than unanimous written consent shall be given at least ten days before the
consummation of the action authorized by such approval, and prompt notice shall
be given of the taking of any other corporate action approved by shareholders
without a meeting by less than unanimous written consent to those shareholders
entitled to vote who have not consented in writing.
Section 11. BALLOT. Elections of directors at a meeting need not be by ballot
unless a shareholder demands election by ballot at the election and before the
voting begins. In all other matters, voting need not be by ballot.
Section 12. SHAREHOLDERS' AGREEMENTS. Notwithstanding the above provisions in
the event this corporation elects to become a close corporation, an agreement
between two or more shareholders thereof, if in writing and signed by the
parties thereof, may provide that in exercising any voting rights the shares
held by them shall be voted as provided therein or in Section 706, and may
otherwise modify these provisions as to shareholders' meetings and actions.
ARTICLE II
BOARD OF DIRECTORS
Section 1. FUNCTIONS. The business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
its Board of Directors. The Board of Directors may delegate the management of
the day-to-day operation of the business of the corporation to a management
company or other person, provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors. The Board of Directors shall
have authority to fix the compensation of directors for services in any lawful
capacity.
Each director shall exercise such powers and otherwise perform such duties
in good faith, in the manner such director believes to be in the best interests
of the corporation, and with care, including reasonable inquiry, using ordinary
prudence, as a person in a like position would use under similar circumstances.
(Section 309).
Section 2. EXCEPTION FOR CLOSE CORPORATION. Notwithstanding the provisions of
Section 1, in the event that this corporation shall elect to become a close
corporation as defined in Section 186, its shareholders may enter into a
Shareholders' Agreement as provided in Section 360 (b). Said Agreement may
provide for the exercise of corporate powers and the management of the business
and affairs of this corporation by the shareholders, provided however such
agreement shall, to the extent and so long as the discretion or the powers of
the Board in its management of corporate affairs is controlled by such
agreement, impose upon each shareholder who is a party thereof, liability for
managerial
3
<PAGE>
acts performed or omitted by such person pursuant thereto otherwise imposed upon
Directors as provided in Section 300 (d).
Section 3. QUALIFICATIONS AND NUMBER. A director need not be a shareholder of
the corporation, a citizen of the United States, or a resident of the State of
California. The authorized number of directors constituting the Board of
Directors until further changed shall be three.* Thereafter, the authorized
number of directors constituting the Board shall be at least three provided
that, whenever the corporation shall have only two shareholders, the number of
directors may be at least two, and, whenever the corporation shall have only one
shareholder, the number of directors may be at least one. Subject to the
foregoing provisions, the number of directors may be changed from time to time
by an amendment of these By-Laws adopted by the shareholders. Any such amendment
reducing the number of directors to fewer than five cannot be adopted if the
votes cast against its adoption at a meeting or the shares not consenting in
writing in the case of action by written consent are equal to more than sixteen
and two-thirds percent of the outstanding shares. No decrease in the authorized
number of directors shall have the effect of shortening the term of any
incumbent director.
Section 4. ELECTION AND TERM. The initial Board of Directors shall consist of
the persons elected at the meeting of the incorporator, all of whom shall hold
office until the first annual meeting of shareholders and until their successors
have been elected and qualified, or until their earlier resignation or removal
from office. Thereafter, directors who are elected to replace any or all of the
members of the initial Board of Directors or who are elected at an annual
meeting of shareholders, and directors who are elected in the interim to fill
vacancies, shall hold office until the next annual meeting of shareholders and
until their successors have been elected and qualified, or until their earlier
resignation, removal from office, or death. In the interim between annual
meetings of shareholders or of special meetings of shareholders called for the
election of directors, any vacancies in the Board of Directors, including
vacancies resulting from an increase in the authorized number of directors which
have not been filled by the shareholders, including any other vacancies which
the General Corporation Law authorizes directors to fill, and including
vacancies resulting from the removal of directors which are not filled at the
meeting of shareholders at which any such removal has been effected, if the
Articles of Incorporation or a By-Law adopted by the shareholders so provides,
may be filled by the vote of a majority of the directors then in office or of
the sole remaining director, although less than a quorum exists. Any director
may resign effective upon giving written notice to the Chairman of the Board, if
any, the President, the Secretary or the Board of, Directors, unless the notice
specifies a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected to the
office when the resignation becomes effective. The shareholders may elect a
director at any time to fill any vacancy which the directors are entitled to
fill, but which they have not filled. Any such election by written consent shall
require the consent of a majority of the shares.
Section 5. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
corporation may indemnify any Director, Officer, agent or employee as to those
liabilities and on those terms and conditions as are specified in Section. 317.
In any event, the corporation shall have the right to purchase and maintain
insurance on behalf of any such persons whether or not the corporation would
have the power to indemnify such person against the liability insured against.
Section 6. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall fix, except
that the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
PLACE. Meetings may be held at any place, within or without the State of
California, which has been designated in any notice of the meeting, or, if not
stated in said notice, or, if there is no notice given, at the place designated
by resolution of the Board of Directors.
- --------
* (However, there may be only two directors until shares are issued.)
4
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CALL. Meetings may be called by the Chairman of the Board, if any and
acting, by the Vice Chairman of the Board, if any, by the President, if any, by
any Vice President or Secretary, or by any two directors.
NOTICE AND WAIVER THEREOF. No notice shall be required for regular
meetings for which the time and place have been fixed by the Board of Directors.
Special meetings shall be held upon at least four days' notice by mail or upon
at least forty-eight hours' notice delivered personally or by telephone or
telegraph. Notice of a meeting need not be given to any director who signs a
waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. A notice or waiver of notice need not specify the
purpose of any regular or special meeting of the Board of Directors.
Section 7. SOLE DIRECTOR PROVIDED BY ARTICLES OF INCORPORATION. In the event
only one director is required by the By-Laws or Articles of Incorporation, then
any reference herein to notices, waivers, consents, meetings or other actions by
a majority or quorum of the directors shall be deemed to refer to such notice,
waiver, etc., by such sole director, who shall have all the rights and duties
and shall be entitled to exercise all of the powers and shall assume all the
responsibilities otherwise herein described as given to a Board of Directors.
Section 8. QUORUM AND ACTION. A majority of the authorized number of directors
shall constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the directors in office shall constitute a
quorum, provided such majority shall constitute at least either one-third of the
authorized number of directors or at least two directors, whichever is larger,
or unless the authorized number of directors is only one. A majority of the
directors present, whether or not a quorum is present, may adjourn any meeting
to another time and place. If the meeting is adjourned for more than twenty-four
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors, if any, who were not
present at the time of the adjournment. Except as the Articles of Incorporation,
these By-Laws and the General Corporation Law may otherwise provide, the act or
decision done or made by a majority of the directors present at a meeting duly
held at which a quorum is present shall be the act of the Board of Directors.
Members of the Board of Directors may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another, and participation by such
use shall be deemed to constitute presence in person at any such meeting.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, provided that any action
which may be taken is approved by at least a majority of the required quorum for
such meeting.
Section 9. CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, the Vice Chairman of the Board, if any and if present and
acting, shall preside at all meetings. Otherwise, the President, if any and
present and acting, or any director chosen by the Board, shall preside.
Section 10. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual director may be removed from office without cause by approval of the
holders of at least a majority of the shares provided, that unless the entire
Board is removed, an individual director shall not be removed when the votes
cast against such removal, or not consenting in writing to such removal, would
be sufficient to elect such director if voted cumulatively at an election of
directors at which the same total number of votes were cast, or, if such action
is taken by written consent, in lieu of a meeting, all shares entitled to vote
were voted, and the entire number of directors authorized at the time of the
director's most recent election were then being elected. If any or all directors
are so removed, new directors may be elected at the same meeting or by such
written consent. The Board of Directors may declare vacant the office of any
director who has been declared of unsound mind by an order of court or convicted
of a felony.
Section 11. COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the authorized number of directors, may designate one or more
committees, each consisting of two or more directors to serve at the pleasure of
the Board of Directors. The Board of Directors may designate one or more
directors as alternate members of any such
5
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committee, who may replace any absent member at any meeting of such committee.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have all the authority of the Board of Directors, except such
authority as may not be delegated by the provisions of the General Corporation
Law.
Section 12. INFORMAL ACTION. The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting, or
an approval of the minutes thereof. All such waivers, consents, or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 13. WRITTEN ACTION. Any action required or permitted to be taken may be
taken without a meeting if all of the members of the Board of Directors shall
individually or collectively consent in writing to such action. Any such written
consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
ARTICLE III
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a Chairman of the
Board or a President or both, a Secretary, and a Chief Financial Officer. The
corporation may also have, at the discretion of the Board of Directors, one or
more Vice Presidents, one or more Assistant Secretaries and such other officers
as may be appointed in accordance with the provisions of Section 3 of this
Article. One person may hold two or more offices.
Section 2. ELECTION. The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 3 or Section 5 of
this Article shall be chosen annually by the Board of Directors, and each shall
hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and qualified.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint such
other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the By-Laws or as the Board of Directors may from time to
time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the Board
of Directors, or to the President, or to the Secretary of the corporation. Any
such resignation shall take effect at the date of the receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in the By-Laws for regular appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there shall be
such an officer, shall, if present, preside at all meetings of the Board of
Directors, and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by the
By-Laws.
6
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Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be ex officio a member of a1l the standing
committees, including the Executive Committee, if any, and shall have the
general powers and duties of management usually vested in the office of
President of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or the By-Laws.
Section 8. VICE PRESIDENT. In the absence or disability of the President, the
Vice Presidents, in order of their rank as fixed by the Board of Directors, or
if not ranked, the Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to, all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of Directors
or the By-Laws.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, a book of
minutes at the principal office or such other place as the Board of Directors
may order, of all meetings of Directors and Shareholders, with the time and
place of holding, whether regular or special, and if special, how authorized,
the notice thereof given, the names of those present at Directors' meetings, the
number of shares present or represented at Shareholders' meetings and the
proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or
at the office of the corporation's transfer agent, a share register, or
duplicate share register, showing the names of the shareholders and their
addresses; the number and classes of shares held by each; the number and date of
certificates issued for the same; and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the Board of Directors required by the By-Laws or by
law to be given, and he shall keep the seal of the corporation in safe custody,
and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or by the By-Laws.
Section 10. CHIEF FINANCIAL OFFICER. This officer shall keep and maintain or
cause to be kept and maintained in accordance with generally accepted accounting
principles, adequate and correct accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, earnings (or surplus) and
shares. The books of account shall at all reasonable times be open to inspection
by any director.
This officer shall deposit all monies and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by
the Board of Directors. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, shall render to the President and directors,
whenever they request it, an account of all his transactions and of the
financial condition of the corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or the
By-Laws.
ARTICLE IV
CERTIFICATES AND TRANSFERS OF SHARES
Section 1. CERTIFICATES FOR SHARES. Each certificate for shares of the
corporation shall set forth therein the name of the record holder of the shares
represented thereby, the number of shares and the class or series of shares
owned by said holder, the par value, if any, of the shares represented thereby,
and such other statements, as applicable, prescribed by Sections 416 - 419,
inclusive, and other relevant Sections of the General Corporation Law of the
State of California (the "General Corporation Law") and such other statements,
as applicable, which may be prescribed by the Corporate Securities Law of the
State of California and any other applicable provision of the law. Each such
certificate issued shall be signed in the name of the corporation by the
Chairman of the Board of Directors, if any, or
7
<PAGE>
the Vice Chairman of the Board of Directors, if any, the President, if any, or a
Vice President, if any, and by the Chief Financial Officer or an Assistant
Treasurer or the Secretary or an Assistant Secretary. Any or all of the
signatures on a certificate for shares may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate for shares shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if such person were an officer,
transfer agent or registrar at the date of issue.
In the event that the corporation shall issue the whole or any part of its
shares as partly paid and subject to call for the remainder of the consideration
to paid therefor, any such certificate for shares shall set forth thereon the
statements prescribed by Section 409 of the General Corporation Law.
Section 2. LOST OR DESTROYED CERTIFICATES FOR SHARES. The corporation may issue
a new certificate for shares or for any other security in the place of any other
certificate theretofore issued by it, which is alleged to have been lost, stolen
or destroyed. As a condition to such issuance, the corporation may require any
such owner of the allegedly lost, stolen or destroyed certificate or any such
owner's legal representative to give the corporation a bond, or other adequate
security, sufficient to indemnify it against any claim that may be made against
it, including any expense or liability, on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 3. SHARE TRANSFERS. Upon compliance with any provisions of the General
Corporation Law and/or the Corporate Securities Law of 1968 which may restrict
the transferability of shares, transfers of shares of the corporation shall be
made only on the record of shareholders of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar, if any, and on surrender of the certificate or
certificates for such shares properly endorsed and the payment of all taxes, if
any, due thereon.
Section 4. RECORD DATE FOR SHAREHOLDERS. In order that the corporation may
determine the shareholders entitled to notice of any meeting or to vote or be
entitled to receive payment of any dividend or other distribution or allotment
of any rights or entitled to exercise any rights in respect of any other lawful
action, the Board of Directors may fix, in advance a record date, which shall
not be more than sixty days or fewer than ten days prior to the date of such
meeting or more than sixty days prior to any other action.
If the Board of Directors shall not have fixed a record date as aforesaid,
the record date for determining shareholders entitled to notice of or to vote at
a meeting of shareholders shall be at the close of business on the business day
next preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held; the record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors has been taken, shall be the day on which the first
written consent is given; and the record date for determining shareholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto, or the sixtieth day
prior to the day of such other action, whichever is later.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
but the Board of Directors shall fix a new record date if the meeting is
adjourned for more than forty-five days from the date set for the original
meeting.
Except as may be otherwise provided by the General Corporation Law,
shareholders on the record date shall be entitled to notice and to vote or to
receive any dividend, distribution or allotment of rights or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date.
Section 5. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of other
corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the President or any Vice President or
any other person authorized by resolution of the Board of Directors.
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Section 6. MEANING OF CERTAIN TERMS. As used in these By-Laws in respect of the
right to notice of a meeting of shareholders or a waiver thereof or to
participate or vote thereat or to assent or consent or dissent in writing in
lieu of a meeting, as the case may be, the term "share" or "shares" or
"shareholder" or "shareholders" refers to an outstanding share or shares and to
a holder or holders of record or outstanding shares when the corporation is
authorized to issue only one class of shares, and said reference is also
intended to include any outstanding share or shares and any holder or holders of
record of outstanding shares of any class upon which or upon whom the Articles
of Incorporation confer such rights where there are two or more classes or
series of shares or upon which or upon whom the General Corporation Law confers
such rights notwithstanding that the Articles of Incorporation may provide for
mote than one class or series of shares, one or more of which are limited or
denied such rights thereunder.
Section 7. CLOSE CORPORATION CERTIFICATES. All certificates representing shares
of this corporation, in the event it shall elect to become a close corporation,
shall contain the legend required by Section 418 (c).
ARTICLE V
EFFECT OF SHAREHOLDERS' AGREEMENT-CLOSE CORPORATION
Any Shareholders' Agreement authorized by Section 300 (b) shall only be
effective to modify the terms of these By-Laws if this corporation elects to
become a close corporation with appropriate filing of or amendment to its
Articles as required by Section 202 and shall terminate when this corporation
ceases to be a close corporation. Such an agreement cannot waive or alter
Sections 158 (defining close corporations), 202 (requirements of Articles of
Incorporation), 500 and 501 relative to distributions, 111 (merger), 1201(e)
(reorganization) or Chapters 15 (Records and Reports), 16 (Rights of
Inspection), 18 (Involuntary Dissolution) or 22 (Crimes and Penalties). Any
other provisions of the Code or these By-Laws may be altered or waived thereby,
but to the extent they are not so altered or waived, these By-Laws shall be
applicable.
ARTICLE VI
CORPORATE CONTRACTS AND INSTRUMENTS-HOW EXECUTED
The Board of Directors, except as in the By-Laws otherwise provided, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation. Such
+authority may be general or confined to specific instances. Unless so
authorized by the Board of Directors, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or agreement, or
to pledge its credit, or to render it liable for any purposes or any amount,
except as provided in Section 313 of the Corporations Code.
ARTICLE VII
CONTROL OVER BY-LAWS
After the initial By-Laws of the corporation shall have been adopted by the
incorporator or incorporators of the corporation, the By-Laws may be amended or
repealed or new By-Laws may be adopted by the shareholders entitled to exercise
a majority of the voting power or by the Board of Directors; provided, however,
that the Board of Directors shall have no control over any By-Law which fixes or
changes the authorized number of directors of the corporation; provided,
further, than any control over the By-Laws herein vested in the Board of
Directors shall be subject to the authority of the aforesaid shareholders to
amend or repeal the By-Laws or to adopt new By-Laws; and provided further that
any By-Law amendment or new By-Law which changes the minimum number of directors
to fewer than five shall require authorization by the greater proportion of
voting power of the shareholders as hereinbefore set forth.
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ARTICLE VIII
BOOKS AND RECORDS - STATUTORY AGENT
Section 1. RECORDS: STORAGE AND INSPECTION. The corporation shall keep at its
principal executive office in the State of California, or, if its principal
executive office is not in the State of California, the original or a copy of
the By-Laws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office of the corporation is outside the State of California, and, if
the corporation has no principal business office in the State of California, it
shall upon request of any shareholder furnish a copy of the By-Laws as amended
to date.
The corporation shall keep adequate and correct books and records of
account and shall keep minutes of the proceedings of its shareholders, Board of
Directors and committees, if any, of the Board of Directors. The corporation
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, a record of its shareholders, giving the names and addresses
of all shareholders and the number and class of shares held by each. Such
minutes shall be in written form. Such other books and records shall be kept
either in written form or in any other form capable of being converted into
written form.
Section 2. RECORD OF PAYMENTS. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, issued in the name of or
payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board of directors.
Section 3. ANNUAL REPORT. Whenever the corporation shall have fewer than one
hundred shareholders, the Board of Directors shall not be required to cause to
be sent to the shareholders of the corporation the annual report prescribed by
Section 1501 of the General Corporation Law unless it shall determine that a
useful purpose would be served by causing the same to be sent or unless the
Department of Corporations, pursuant to the provisions of the Corporate
Securities Law of 1968, shall direct the sending of the same.
Section 4. AGENT FOR SERVICE. The person who shall be designated as the agent
for service of process within the State of California shall be determined from
time to time by resolution of the Board of Directors.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting secretary of THE ALBUM
NETWORK, INC., a California corporation.
2. That the foregoing By-Laws were adopted as the By-Laws of THE
ALBUM NETWORK, INC., a California corporation, on January 20, 1998 by unanimous
written consent of the Board of Directors and shareholders of said corporation.
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IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed
the seal of said corporation on this _____ day of January, 1998.
/s/ Stephen R. Smith
---------------------
Stephen R. Smith
Secretary
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ARTICLES OF INCORPORATION
OF
TOURING PRODUCTIONS, INC.
-------------------
I, the undersigned, a natural person of the age of twenty-one years or
more, acting as the incorporator of a corporation under the Texas Business
Corporation act, do hereby adopt the following Articles of Incorporation for
such corporation:
ARTICLE ONE
The name of the corporation is
TOURING PRODUCTIONS, INC.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Business
Corporation Act of Texas.
ARTICLE FOUR
The aggregate number of shares which the corporation shall have
authority to issue is Twenty thousand (20,000) shares, and the par value of
each of such shares is one dollar ($1.00).
ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of at least one thousand
dollars ($1,000.00), consisting of money, labor done or property actually
received.
<PAGE>
ARTICLE SIX
The post office address of its initial registered office is the
Littlefield Building, Austin, Texas 78701, and the name of its initial
registered agent at such address is the United States Corporation Company.
ARTICLE SEVEN
The number of directors constituting the initial Board of Directors is
one (1) and the names and addresses of the persons who are to serve as
directors until the first annual meeting of shareholders or until their
successors are elected and qualified are:
NAMES ADDRESSES
----- ---------
Gale Richnow 16951 Nevisway
Houston, Texas 77084
ARTICLE EIGHT
The name and address of the incorporator are:
NAME ADDRESS
---- -------
Anthony J. Alexander 70 Pine Street
New York, New York 10270
IN WITNESS WHEREOF, I have hereunto set my hand on the day opposite my
signature.
Dated: October 25th, 1985 /s/ Anthony J. Alexander
------------------------
Anthony J. Alexander
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<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
I, Tammy Lavelle, a Notary Public, do hereby certify that on the 25th
of October, 1985, personally appeared before me, Anthony J. Alexander, who
being by me first duly sworn, declared that he is the person who signed the
foregoing document as incorporator, and that the statements therein contained
are true.
/s/ Tammy Lavelle
--------------------------------------
Tammy Lavelle
Notary Public, State of New York
No. 31-4775711
Qualified in New York County
Commission Expire March 30, 1988
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<PAGE>
B Y - L A W S
OF
TOURING PRODUCTIONS, INC.
----------------
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE AND AGENT.--The registered
office of the corporation shall be maintained at, The Littlefield Building,
Austin, Texas, and United States Corporation Company shall be the registered
agent therein and in charge thereof. The registered office or the registered
agent, or both, may be changed by resolution of the Board of Directors, upon
filing the statement required by law.
SECTION 2. OTHER OFFICES.--The corporation may also maintain
other offices at such places within or without the State of Texas as the Board
of Directors may from time to time appoint or as the business of the
corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.--All meetings of shareholders,
both regular and special, shall be held either at the registered office of the
corporation in Texas or at such other places, either within or without the
state, as shall be designated in the notice of the meeting.
SECTION 2. ANNUAL MEETING.--The annual meeting of
shareholders for the election of directors and for the transaction of all other
business which may come before the meeting
<PAGE>
shall be held on October 29 , (if not a legal holiday and, if a legal holiday,
then on the next secular day following) at the hour specified in the notice of
meeting.
If the election of directors shall not be held on the day
above designated for the annual meeting, the Board of Directors shall cause the
election to be held as soon thereafter as conveniently may be at a special
meeting of the shareholders called for the purpose of holding such election.
Unless otherwise prescribed by statute, the annual meeting of
shareholders need not be limited to the purpose of electing directors but may
be held for any other purpose in addition thereto which may be specified in a
call for such meeting made by resolution of the Board of Directors or made by a
writing filed with the Secretary signed either by a majority of the Directors
or by shareholders owning a majority in amount of the entire capital stock of
the corporation issued and outstanding and entitled to vote at any such
meeting.
SECTION 3. NOTICE OF SHAREHOLDERS' MEETING. --Written or
printed notice stating the place, day, and hour of the meeting, and in case of
a special meeting, the purpose or purposes for which it is called, shall be
delivered not less than ten (10) nor more than fifty (50) days before the date
of the meeting, either personally or by mail, by or at the direction of the Pre
sident or the Secretary or the officer or person calling the meeting, to each
shareholder of record entitled to vote at such Meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid.
SECTION 4. VOTING OF SHARES.--Each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to
a vote at a meeting of shareholders, except
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to the extent that the voting rights of the shares of any class or classes are
limited or denied by the Articles of Incorporation as permitted by law.
Treasury shares, shares of its own stock owned by another
corporation the majority of the voting stock of which is owned or controlled by
this corporation, and shares of its own stock held by this corporation in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
A shareholder may vote either in person or by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact. No
proxy shall be valid after eleven (11) months from the date of its execution
unless otherwise provided in proxy. Each proxy shall be revocable unless
expressly provided therein to be irrevocable, and unless otherwise made
irrevocable by law.
At each election for directors every shareholder entitled to
vote at such election shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there are directors to be
elected and for whose election he has a right to vote, or to cumulate his votes
by giving one candidate as may votes as the number of such directors multiplied
by the number of his shares shall equal, or by distributing such votes on the
same principle among any number of such candidates. Any shareholder who intends
to cumulate his votes as herein authorized shall give written notice of such
intention to the secretary of the corporation on or before the day preceding
the election at which such shareholder intends to cumulate his votes.
SECTION 5. CLOSING TRANSFER BOOKS AND FIXING RECORD
DATE.--For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of
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<PAGE>
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not to exceed, in any case, fifty
(50) days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer books, the
by-laws or in the absence of an applicable by-law the Board of Directors, may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty (50) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the
date on which the particular action, requiring such determination of
shareholders is to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, or shareholders entitled to receive
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the Board of Directors declaring such dividend
is adopted, as the case may be, shall be the record date for such determination
of shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of stock transfer books and the
stated period of closing has expired.
SECTION 6. QUORUM OF SHAREHOLDERS. --Unless otherwise
provided in the Articles of Incorporation, the holders of a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of shareholders, but in no event shall a
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<PAGE>
quorum consist of the holders of less than one-third (1/3) of the shares
entitled to vote and thus represented at such meeting. The vote of the holders
of a majority of the shares entitled to vote and thus represented at a meeting
at which a quorum is present shall be the act of the shareholders' meeting,
unless the vote of a greater number is required by law, the Articles of
Incorporation or the by-laws.
SECTION 7. VOTING LISTS.--The officer or agent having charge
of the stock transfer books for the shares of the corporation shall make, at
least ten (10) days before each meeting of sharesholders, a complete list of
the shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each, which list, for a period of ten (10) days prior to such meeting,
shall be kept on file at the registered office of the corporation and shall be
subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during
the whole time of the meeting. The original stock transfer books shall be
prima-facie evidence as to who are the shareholders entitled to examine such
list or transfer books or to vote at any meeting of shareholders.
SECTION 8. ACTION WITHOUT MEETING; TELEPHONE
PARTICIPATION.--Any action required by the Articles of Incorporation, these
by-laws or any provision of law to be taken at a meeting or any other action
which may be taken at a meeting, may be taken without a meeting if a consent in
writing setting forth the action so taken shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof. Such
consent shall have the same force and effect as a unanimous vote, and may be
stated as such in any articles or document.
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<PAGE>
Shareholders may participate in a meeting of shareholders by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
ARTICLE III
DIRECTORS
SECTION 1. BOARD OF DIRECTORS.--The business and affairs of
the corporation shall be managed by a Board of Directors. Directors need not be
residents of the State of Texas or shareholders in the corporation.
SECTION 2. ELECTION OF DIRECTORS.--The number of directors
shall be one (1) provided that the number may be increased or decreased from
time to time by an amendment to these by-laws, but no decrease shall have the
have the effect of shortening the term of any incumbent director. At each
annual election the shareholders shall elect directors to hold office until the
next succeeding annual meeting.
SECTION 3. VACANCIES.--Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of the remaining directors,
though less than a quorum of the Board. Any directorship to be filled by reason
of an increase in the number of directors shall he filled by election at an
annual meeting or at a special meeting of shareholders called for that purpose.
A director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
SECTION 4. QUORUM OF DIRECTORS.--A majority of the Board of
Directors shall constitute a quorum for the transaction of business. The act of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
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<PAGE>
SECTION 5. ANNUAL MEETING OF DIRECTORS.--Within thirty days
after each annual meeting of shareholders the Board of Directors elected at
such meeting shall hold an annual meeting at which they shall elect officers
and transact such other business as shall come before the meeting.
SECTION 6. REGULAR MEETINGS OF DIRECTORS.--A regular meeting
of the Board of Directors may held at such time as shall be determined from
time to time by resolution of the Board of Directors.
SECTION 7. SPECIAL MEETINGS OF DIRECTORS.--The Secretary
shall call a special meeting of the Board of Directors whenever requested to do
so by the President or by two directors. Such special meeting shall be held at
the time specified in the notice of meeting.
SECTION 8. PLACE OF DIRECTORS' MEETINGS.--All meetings of the
Board of Directors (annual, regular or special) shall be held either at the
principal office of the corporation or at such other place, either within or
without the State of Texas, as shall be specified in the notice of meeting.
SECTION 9. NOTICE OF DIRECTORS' MEETINGS.--All meetings of
the Board of Directors (annual, regular or special) shall be held upon five (5)
days' written notice stating the date, place and hour of meeting delivered to
each director either personally or by mail or at the direction of the President
or the Secretary or the person calling the meeting.
In any case where all of the directors execute a waiver of
notice of the time and place of any meeting, no notice thereof shall be
required, and any such meeting (whether annual, regular or special) shall be
held at the time and at the place (either within or without the State of Texas)
specified in the waiver of notice. Attendance of a director at any meeting
shall constitute a waiver of notice of such meeting, except where the director
attends a meeting for the express purpose of
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<PAGE>
objecting to the transaction of any business on the ground that the meeting in
not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of,
any annual, regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 10. COMPENSATION.--Directors, as such, shall not
receive any stated salary for their services, but by resolution of the Board of
Directors a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each annual, regular or special meeting of the Board, provided,
that nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 11. ACTION WITHOUT A MEETING.--Any action required by
the Articles of Incorporation, these by-laws or any provision of law to be
taken at a meeting or any other action which may be taken at a meeting, may be
taken without a meeting if a consent in writing setting forth the action so
taken shall be signed by all of the directors or members of a committee thereof
entitled to vote with respect to the subject matter thereof. Such consent shall
have the same force and effect as a unanimous vote, and may be stated as such
in any articles or document.
SECTION 12. TELEPHONE PARTICIPATION.--Members of the Board
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 13. COMMITTEES.--The Board of Directors, by
resolution adopted by a majority of the full Board of Directors may designate
from among its members an executive
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<PAGE>
committee and one or more other committees, each of which, to the extent
provided in such resolution shall have and may exercise all of the authority of
the Board of Directors except as otherwise provided by statute.
SECTION 14. REMOVAL.--Any director or directors may be
removed either for or without cause at any time by affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote, at a special meeting of the shareholders called for the purpose and the
vacancies thus created may be filled, at the meeting held for the purpose of
removal, by the affirmative vote of a majority in interest of the shareholders
entitled to vote. If less than the entire Board is to be removed, no director
may be removed without cause if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS; ELECTION.--The officers of the
corporation shall consist of a President, one or more Vice Presidents, a
Secretary, and a Treasurer. All such officers shall be elected at the annual
meeting of the Board of Directors provided for in ARTICLE III, SECTION 5. If
any office is not filled at such annual meeting, it may be filled at any
subsequent regular or special meeting of the Board. The Board of Directors at
such annual meeting, or at any subsequent regular or special meeting may also
elect or appoint such other officers and assistant officers and agents as may
be deemed necessary. Any two or more offices may be held by the same person.
All officers and assistant officers shall be elected to serve
until the next annual meeting of Directors (following the next annual meeting
of shareholders) or until their successors are elected; provided, that any
officer or assistant officer elected or appointed by the Board of
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<PAGE>
Directors may be removed with or without cause at any regular or special
meeting of the Board whenever in the judgment of the Board of Directors the
best interests of the corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Any agent appointed shall serve for such term, not longer than the
next annual meeting of the Board of Directors, as shall be specified, subject
to like right of removal by the Board of Directors.
SECTION 2. VACANCIES.--If any office becomes vacant for any
reason, the vacancy may be filled by the Board of Directors.
SECTION 3. POWERS OF OFFICERS.--Each officer shall have,
subject to these by-laws, in addition to the duties and powers specifically set
forth herein, such powers and duties as are commonly incident to his office and
such duties and powers as the Board of Directors shall from time to time
designate. All officers shall perform their duties subject to the directions
and under the supervision of the Board of Directors. The President may secure
the fidelity of any and all officers by bond or otherwise.
SECTION 4. PRESIDENT.--The President shall be the chief
executive officer of the corporation. He shall preside at all meetings of the
directors and shareholders. He shall see that all orders and resolutions of the
Board are carried out, subject however, to the right of the directors to
delegate specific powers, except such as may be by statute exclusively
conferred on the President, to any other officer or officers of the
corporation.
He or any Vice President shall execute bonds, mortgages and
other instruments requiring a seal, in the name of the corporation, and, when
authorized by the Board, he or any Vice President may affix the seal to any
instrument requiring the same, and the seal when so affixed shall
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<PAGE>
be attested by the signature of either the Secretary of an Assistant Secretary.
He or any Vice President shall sign certificate of stock.
The President shall be ex-officio a member of all standing
committees.
He shall submit a report of the operations of the corporation
for the year to the directors at their meeting next preceding the annual
meeting of the shareholders and to the share holders at their annual meeting.
SECTION 5. VICE PRESIDENT.--The Vice President in the order
of their seniority shall, in the absence or disability of the President,
perform the duties and exercise the powers of the President, and they shall
perform such other duties as the Board of Directors shall prescribe.
SECTION 6. THE SECRETARY AND ASSISTANT SECRETARIES.--The
Secretary shall attend all meetings of the Board and of all meetings of the
shareholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give or cause to be given notice of all
meetings of the shareholders and all meetings of the Board of Directors and
shall perform such other duties as may be prescribed by the Board. He shall
keep in safe custody the seal of the corporation, and when authorized by the
Board, affix the same to any instrument requiring it, and when so affixed, it
shall be attested by his signature or by the signature of an Assistant
Secretary.
The Assistant Secretaries in order of their seniority shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary, and they shall perform such other duties as the
Board of Directors shall prescribe.
In the absence of the Secretary or an Assistant Secretary,
the minutes of all meetings of the Board and of shareholders shall be recorded
by such person as shall be designated by the President or by the Board of
Directors.
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<PAGE>
SECTION 7. THE TREASURER AND ASSISTANT TREASURERS.--The
Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories
as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements. He shall keep and maintain the corporation's books of account
and shall render to the President and Directors and account of all of his
transactions as Treasurer and of the financial condition of the corporation and
exhibit his books, records and accounts to the President or directors at any
time. He shall disburse funds for capital expenditures as authorized by the
Board of Directors and in accordance with the orders of the President, and
present to the President for his attention any requests for disbursing funds if
in the judgment of theTreasurer any such request is not properly authorized. He
shall perform such other duties as may be directed by the Board of Directors or
by the President.
If required by the Board of Directors, he shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his
control belonging to the corporation.
The Assistant Treasurers in the order of their seniority
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer, and they shall perform such other duties
as the Board of Directors shall prescribe.
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<PAGE>
ARTICLE V
CERTIFICATES OF STOCK: TRANSFER, ETC.
SECTION 1. CERTIFICATES OF STOCK.--The Certificates of stock
of the corporation shall be numbered and shall be entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the President or a Vice President and the
Secretary or an Assistant Secretary and may be sealed with the seal of the
corporation or a facsimile thereof. If the corporation has a transfer agent or
a registrar, other than the corporation itself or an employee of the
corporation, the signatures of any such officer may be facsimile. In case any
officer or officers who shall have signed or whose facsimile signature or
signatures shall have been used on any such certificate or certificates shall
cease to be such officer or officers of the corporation, whether because of
death, resignation or otherwise, before said certificate or certificates shall
have been issued, such certificate may nevertheless be issued by the
corporation with the same effect as though the person or persons who signed
such certificates or whose facsimile signature or signatures shall have been
used thereon had been such officer or officers at the date of its issuance.
Certificates of stock shall be in such form as shall in conformity to law be
prescribed from time to time by the Board of Directors.
The corporation may appoint from time to time transfer agents
and registrars, who shall perform their duties under the supervision of the
Secretary.
SECTION 2. TRANSFER OF STOCK.--Upon surrender to the
corporation or the transfer agent of the corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction upon its books.
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<PAGE>
SECTION 3. REGISTERED SHAREHOLDERS.--The corporation shall
be entitled to treat the holder of record of any share or shares of stock as
the holder in fact thereof and, accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Texas.
SECTION 4. LOST CERTIFICATE.--The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate of stock to be lost. When authorizing such
issue of a new certificate or certificates, the Board of Directors in its
discretion and as a condition precedent to the issuance thereof, may require
the owner of such lost or destroyed certificate or certificates or his legal
representative to advertise the same in such manner as it shall require or to
give the corporation a bond with surety and in form satisfactory to the
corporation (which bond shall also name the corporation's transfer agents and
registrars, if any, as obligees) in such sum as it may direct as in demnity
against any claim that may be made against the corporation or other obligees
with respect to the certificate alleged to have been lost or destroyed, or to
advertise and also give such bond.
ARTICLE VI
DIVIDEND
SECTION 1. DECLARATION.--The Board of Directors may declare
at any annual, regular or special meeting of the Board and the corporation may
pay, dividends on the outstanding shares in cash, property or in the shares of
the corporation to the extent permitted by, and subject to the provisions of,
the laws of the State of Texas.
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<PAGE>
SECTION 2. RESERVES. --Before payment of any dividend there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the directors from time to time in their absolute
discretion think proper as a reserve fund to meet contingencies or for
equalizing dividends or for repairing or maintaining any property of the
corporation or for such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may abolish any such reserve
in the manner in which it was created.
ARTICLE VII
MISCELLANEOUS
SECTION 1. SEAL.--The corporation seal shall be circular in
form and shall contain the name of the corporation, the year of its
incorporation and the words "CORPORATE SEAL TEXAS". Such seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced. The corporate seal may be altered by order of the Board of
Directors at any time.
SECTION 2. CHECKS. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
SECTION 3. FISCAL YEAR.--The fiscal year of the corporation
shall [
SECTION 4. AMENDMENTS.--Subject to repeal or change by action
of the shareholders, these by-laws may be altered, amended or repealed or new
by-laws may be adopted by action of the Board of Directors.
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<PAGE>
ARTICLES OF INCORPORATION
OF
TUNEFUL COMPANY, INC.
------
The undersigned, being a natural person of the age of 18 years or
more and acting as the incorporator, does hereby adopt the following Articles of
Incorporation for the purpose of organizing a corporation pursuant to the
provisions of the Texas Business Corporation Act.
ARTICLE ONE
The name of the corporation is TUNEFUL COMPANY, INC.
ARTICLE TWO
The period of duration of the corporation is perpetual.
ARTICLE THREE
The purpose or purposes for which the corporation is organized are:
To transact any or all lawful business for which corporations
may be incorporated under the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares which the corporation shall have
authority to issue is one thousand, all of which are of one class and of the par
value of one dollar each.
ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of at least one thousand
dollars, consisting of money, labor done, or property actually received.
ARTICLE SIX
No holder of any class of shares of the corporation shall be
entitled to cumulate his votes at any election of directors.
ARTICLE SEVEN
The following provisions are inserted herein for the purpose of
defining, limiting, and regulating the powers of the corporation and of the
directors and of the shareholders, provided, however, that said provisions shall
not be deemed exclusive of any rights or liabilities otherwise granted or
imposed by the laws of the State of Texas:
- 1 -
<PAGE>
(a) The corporation shall, to the fullest extent permitted by
Article 2.02-1 of the Texas Business Corporation Act, as the same
may be amended and supplemented, indemnify any and all persons whom
it shall have power to indemnify under said Article from and against
any and all of the expenses, liabilities, or other matters referred
to or covered by said Article.
(b) Whenever any provision of the Texas Business Corporation
Act shall otherwise require for the approval of any specified
corporate action the authorization of at least two-thirds of the
voting power of shareholders entitled to vote, any such corporate
action shall be approved by the authorization of at least a majority
of the voting power of the shareholders entitled to vote; and
whenever the corporation shall have one or more classes or series of
shares which are denied voting power under the Articles of
Incorporation but the authorization of at least two-thirds of the
voting power of said class or series is otherwise required for the
approval of any specified corporate action under the Texas Business
Corporation Act, any such corporate action shall be approved by said
class or series by the authorization of at least a majority of the
voting power of each such class and of each such series. The term
"voting power", as used herein, shall have the meaning ascribed to
it by the provisions of Article 2.29 of the Texas Business
Corporation Act, as the same may be amended and supplemented.
(c) In conformity with the provisions of Article 2.03 of the
Texas Business Corporation Act, as the same may be amended and
supplemented, and without the vote or concurrence of any of its
shareholders, the corporation may purchase, directly or indirectly,
its own shares to the extent of the aggregate of unrestricted
capital surplus available therefor and unrestricted reduction
surplus available therefor.
ARTICLE EIGHTH
The post-office address of the initial registered office of the
corporation in the State of Texas is c/o The Prentice-Hall Corporation System,
Inc., Littlefield Building, Austin, Texas 78701, and the name of the initial
registered agent of the corporation at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE NINTH
The number of directors constituting the initial Board of Directors
of the corporation is one, and the name and the address of each person who is to
serve as a director until the first annual meeting of the shareholders or until
his successor is elected and qualified are:
NAME ADDRESS
---- -------
Miles Wilkin 4543 Post Oak Place Drive,
Suite 200
Houston, Texas 77027
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<PAGE>
ARTICLE TEN
The name and the address of the incorporator are:
NAME ADDRESS
---- -------
Monica Ferguson 1 Gulf & Western Plaza
New York, N.Y. 10023-7773
ARTICLE ELEVEN
From time to time any of the provisions of these Articles of
Incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Texas at the time in force may be added
or inserted in the manner and at the time prescribed by said laws, and all
contracts and rights at any time conferred upon the shareholders of the
corporation by these Articles of Incorporation are granted subject to the
provisions of this Article.
Signed on April 7, 1987.
/s/ Monica Ferguson
-----------------------------
Monica Ferguson, Incorporator
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
I, Vita Ponzo, a notary public, do hereby certify that on this 7th
day of April, 1987, personally appeared before me Monica Ferguson, who being by
me first duly sworn declared that she is the person who signed the foregoing
document as incorporator, and that the statements therein contained are true.
\s\ Vita Ponzo
-----------------------------
Notary Public
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<PAGE>
Minutes
and
By Laws
OF
TUNEFUL COMPANY, INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF TEXAS
Law Offices
of
Elliot H. Brown, Esq.
Brown & Dobson
950 Third Avenue, Suite 700
New York, New York 10022
<PAGE>
MINUTES OF THE ORGANIZATION MEETING OF THE DIRECTORS OF
TUNEFUL COMPANY, INC.
- -------------------------------------------------------------------------------
The organization meeting of directors was held at 4543 Post Oak Place
Drive, Suite 200, Houston, Texas 77027 on May 4, 1987 at 2:00 P.M.
The following were present
Miles Wilkin
being all the directors of the corporation.
Miles Wilkin was appointed chairman of the meeting and Miles Wilkin
was appointed secretary.
The secretary then presented and read to the meeting the waiver of
notice of the meeting, subscribed by all the directors named in the articles of
incorporation, and it was ordered that it be appended to the minutes of the
meeting.
The secretary then presented and read to the meeting a cop of the
articles of incorporation and reported that on April 8, 1987 the original
thereof was filed in the office of the Secretary of State of the State of Texas
and that the Secretary of State issued a formal Certificate of Incorporation to
the company on that date. The secretary presented the Certificate of
Incorporation annexed to an approved duplicate of the articles of incorporation
as filed and it was ordered appended to the minutes of the meeting.
The secretary then presented to the meeting the resignation of all the
directors of the corporation, and it was ordered that they be filed with the
minutes of the meeting.
RESOLVED that the resignation of directors as presented to the meeting
are hereby approved and accepted and they are to take affect at the close of
the organization meeting.
The chairman then stated that nominations were in order for election
of directors of the corporation to hold office until the first annual meeting
of shareholders and until their successors shall be elected and shall qualify.
The following persons were nominated:
Allen J. Becker
Sidney Schlenker
Miles Wilkin
No further nominations being made nominations were closed and a vote
was taken.
After the vote had been counted, the chairman declared that the
foregoing named nominees were elected directors of the corporation. The
chairman then stated that the newly elected directors would assume their
responsibilities immediately.
The secretary then presented a proposed form of by-laws prepared by
Elliot H. Brown, Esq., counsel to the corporation. The proposed by-laws were
read to the meeting, considered and upon motion duly made, seconded and
carried, were adopted as-and for the by-laws of the corporation and ordered
appended to the minutes of the meeting.
The chairman of the meeting then called for the election of officers
of the corporation. The following persons were nominated to the office
preceding their name:
<PAGE>
president: Miles Wilkin
vice-presidents Allen J. Becker and Becky Patten
secretary: John Rubey
treasurer: John Rubey
No further nominations being made the nominations were closed and the
directors proceeded to vote on the nominees. The chairman announced that the
foregoing nominees were elected to the offices set before their respective
names.
The secretary submitted to the meeting a seal proposed for use as the
corporate seal, a specimen share certificate proposed for use as the corporate
certificate for shares the corporate record book, and the share transfer
ledger. Upon
motion duly made, seconded and carried, it was
RESOLVED, that the seal now presented at this meeting, an impression
of which is directed to be made in the minutes of this meeting, be and the same
hereby is adopted as the seal of the corporation, and further
RESOLVED, that the specimen share certificate presented to this
meeting be and hereby is adopted as the form of certificate for shares to be
issued to represent shares in the corporation, and further
RESOLVED, that the corporate record book, including the share transfer
ledger, be and hereby is adopted as the record book and share transfer ledger
of the corporation.
Upon motion duly made, seconded and carried, it was
RESOLVED, that the treasurer of the corporation be and hereby is
authorized to pay all charges and expenses incident to or arising out of the
organization of the corporation and to reimburse any person who has made any
disbursement therefor.
Upon motion, duly made, seconded and carried, it was
RESOLVED, that an office of the corporation be established and
maintained at 4543 Post Oak Place Drive, Suite 200 in the City of Houston State
of Texas and that meetings of the board of directors from time to time may be
held either at the principal office or at such other place as the board of
directors shall from time to time order.
Upon motion, duly made, seconded and carried, it was
RESOLVED, that for the purpose of authorizing the corporation to do
business in any state, territory or dependency of the United States or any
foreign country in which it is necessary or expedient for this corporation to
transact business, the proper officers of this corporation are hereby
authorized to appoint and substitute all necessary agents or attorneys for
service of process, to designate and change the location of all necessary
statutory offices and, under the corporate seal, to make and file all necessary
certificates, reports, powers of attorney and other instruments as may be
required by the laws of such state, territory, dependency or country to
authorize the corporation to transact business therein.
The chairman then stated that it was desirable to designate a
depository for the funds of the corporation. Thereupon, on motion duly' made,
seconded and unanimously adopted, it was
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<PAGE>
RESOLVED, that the treasurer be and hereby is authorized to open a
bank account in behalf of the corporation with _________________ located at
_____________________ and a resolution for that purpose on the printed form of
said bank was adopted and was ordered appended to the minutes of this meeting.
The secretary then presented to the meeting a written proposal from
PACE THEATRICAL GROUP, INC. dated May 4, 1997 and addressed to this
corporation.
Upon motion duly made, seconded and carried, the said proposal was
ordered filed with the secretary, and he was requested to append a copy of the
proposal to the minutes.
The proposal was taken up for consideration and the following
resolution was on motion unanimously adopted.
WHEREAS, a written proposal has been made to this corporation which
proposal has been appended to these minutes, and
WHEREAS, in the judgment of the board of directors the assets proposed
to be transferred to the corporation are reasonably worth the amount of the
consideration demanded therefor, and that it is in the best interests of this
cor poration to accept the said offer as set forth in said proposal,
NOW THEREFORE, IT IS RESOLVED that said offer, as set forth in said
proposal, be and the same hereby is approved and accepted and that in
accordance with the terms thereof, this corporation shall as full payment for
said property issue to said offeror 1,000 fully paid and non-assessable shares
of this corporation, and it is
FURTHER RESOLVED, that upon the delivery to this corporation of said
assets and the execution and delivery of such proper instruments as may be
necessary to transfer and convey the same to this corporation, the officers of
this corporation are authorized and directed to execute and deliver the
certificate for such shares as are required .to be issued and delivered on
acceptance of said offer in accordance with the foregoing.
Upon motion duly made, seconded and carried, it was
RESOLVED, that the board of directors of the corporation be, and it
hereby is, authorized to issue from time to time the authorized shares of
capital stock of the corporation for money paid labor done or personal property
or real estate or leases thereof actually acquired by the corporation, upon
such terms as the board of directors in its discretion may determine.
Upon motion duly made, seconded and carried, it was
RESOLVED, that the corporation proceed to carry on the business for
which it was incorporated, and further
RESOLVED, that the signing of these minutes shall constitute full
ratification thereof and waiver of notice of the meeting by the signatories.
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<PAGE>
There being no further business before the meeting, on motion duly
made-, seconded and carried, the meeting was adjourned.
Dated:
May 4, 1987 /s/ Miles Wilkin
-----------------------
chairman, Miles Wilkin
________________________________ /s/ Miles Wilkin
-----------------------
secretary, Miles Wilkin
- --------------------------------
A true copy of each of the following papers referred to in the
foregoing minutes is appended hereto:
Waiver of notice of the meeting
Certificate of Incorporation and articles of incorporation
By-laws
Specimen share certificates
Resolution designating depository of funds
- 4 -
<PAGE>
WAIVER OF NOTICE OF THE ORGANIZATION MEETING OF THE DIRECTORS OF
TUNEFUL COMPANY, INC.
- -------------------------------------------------------------------------------
We, the undersigned, being all the directors named in the articles of
incorporation of the above corporation hereby agree and consent that the
organization meeting thereof be held on the date and at the time and place
stated below and hereby waive all notice of such meeting and of any adjournment
thereof.
Place of meeting 4543 Post Oak-Place Drive, Suite 200
Houston, Texas 77027
Date of meeting May 4, 1987
Time of meeting 2:00 p.m.
/s/ Miles Wilkin
-----------------
Miles Wilkin
- 5 -
<PAGE>
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION
OF
MF ACQUISITION, L.L.C.
It is hereby certified that:
1. The name of the limited liability company (the "Company") is MF
Acquisition, L.L.C.
2. The certificate of formation of the Company is hereby amended by
striking out Article 1 thereof and by substituting in lieu of said Article the
following new Article 1:
The name of the limited liability company (hereunder called the "limited
liability company") is Westbury Music fair, LLC.
Executed on January 16, 1998.
/s/ Kraig G. Fox
---------------------
Kraig G. Fox
Authorized Person
<PAGE>
ARTICLES OF INCORPORATION
OF
WOLFGANG RECORDS
I
The name of the corporation is Wolfgang Records.
II
The purpose of the corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The name and address in the State of California of the corporation's initial
agent for service of process are:
Mr. Franklin D. Rockwell, Jr.
260 Fifth Street
San Francisco, California 94103
IV
The corporation is authorized to issue only one class of shares of stock; and
the total number of shares authorized to be issued is ten thousand (10,000).
V
(a) The liability of the directors of the corporation for monetary damages shall
be eliminated to the fullest extent permissible under California law.
(b) The corporation is authorized to provide indemnification of agents (as
defined in Corporations Code Section 317) through bylaw provisions, agreements
with agents, vote of shareholders or disin terested directors or otherwise, to
the fullest extent permissible under California law.
(c) Any amendment, repeal or modification of any provision of this Article V
shall not adversely affect any right or protection of an agent of the
corporation existing at the time of such amendment, repeal or modification.
Dated: May 2, 1995 /s/ Richard L. Greene
----------------------------
Richard L. Greene
<PAGE>
BYLAWS
OF
WOLFGANG RECORDS
<PAGE>
BYLAWS
OF
WOLFGANG RECORDS
ARTICLE I - OFFICES
1.01 - PRINCIPAL OFFICE
The principal executive and business office of the corporation is
hereby fixed and located in the City and County of San Francisco, California or
such other location as the board of directors may determine.
1.02 - OTHER OFFICES
Branch or subordinate offices may at any time be established at any
place or places by the board of directors.
ARTICLE II - MEETINGS OF SHAREHOLDERS
2.01 - PLACE OF MEETINGS
All annual and all other meetings of shareholders shall be held at
the principal executive office of the corporation, or at any other place within
or without the State of California which may be designated either by the board
of directors, or by the written consent of all shareholders entitled to vote
thereat, provided such shareholder consent is given either before or after the
meeting and filed with the secretary of the corporation.
2.02 - ANNUAL MEETINGS
The annual meetings of shareholders shall be held on the first
Thursday in April at 10:00 a.m.; provided, however, that should said day fall
upon a legal holiday, then any such annual
<PAGE>
meeting of shareholders shall be held at the same time and place on the next day
thereafter ensuing which is not a legal holiday. At such meetings, directors
shall be elected, reports of the affairs of the corporation shall be considered,
and any other business may be transacted which is within the powers of the
shareholders.
2.03 - SPECIAL MEETINGS
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by any of (i) the president, (ii) the
board of directors, (iii) the chairman of the board, or (iv) one or more
shareholders holding shares in the aggregate entitled to cast not less than 10
percent of the votes at that meeting.
If a special meeting is called by any person or persons other than
the board of directors, such person shall make a request therefor in writing,
specifying (i) the date and time of such meeting, which shall be not less than
35 nor more than 60 days after the receipt of the request, and (ii) the general
nature of the business proposed to be transacted at the meeting. Such request
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, any
vice president or the secretary of the corporation. The officer receiving the
request shall cause notice to be given within 20 days to the shareholders
entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5, and
the notice shall set forth that a meeting will be held at the time requested by
the person or persons calling the meeting. If the notice is not given within
such 20-day period, the person(s) requesting the meeting may give the notice.
2
<PAGE>
2.04 - NOTICE OF MEETINGS
All notices of meetings of shareholders, whether annual or special,
shall be sent or otherwise given not less than 10 nor more than 60 days before
the date of the meeting, except as provided in Section 2.03. The notice shall
specify the place, date and hour of the meeting and (i) in the case of a special
meeting, the general nature of the business to be transacted, or (ii) in the
case of the annual meeting, those matters which the board of directors, at the
time of giving the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees whom, at the time of the notice, management
intends to present for election. The notice shall also state the general nature
of the proposal if action is proposed to be taken at any meeting for approval of
any of the following: (i) a contract or transaction in which a director has a
direct or indirect financial interest; (ii) an amendment of the articles of
incorporation (iii) a reorganization of the corporation (iv) a voluntary
dissolution of the corporation; or (v) a distribution in dissolution other than
in accordance with the rights of any outstanding preferred shares.
Notwithstanding the absence of specific notice thereof, any such action may
nevertheless be presented to the meeting and be validly acted upon by the
shareholders if approved by all shareholders entitled to vote thereon, unless
they sign waivers of notice specifying the general nature of the proposal so
approved.
2.05 - MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any shareholders' meeting shall be given either personally
or by first-class mail or telegraphic or written communication, charges prepaid,
addressed to the shareholder at the address of that shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice. If no such address appears on the corporation's books
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or has been so given, notice shall be deemed to have been given if published at
least once in a newspaper of general circulation in the county where that office
is located or in any manner permitted by law. Notice shall be deemed to have
been given at the time when delivered personally, deposited in the mail,
delivered to a common carrier for transmission to the recipient, actually
transmitted by electronic means to the recipient by the person giving the
notice, or sent by other means of written communication.
An affidavit of the mailing or other means of giving any notice of
any shareholders' meeting may be executed by the secretary, assistant secretary,
or any transfer agent of the corporation giving the notice, and filed and
maintained in the minute book of the corporation.
2.06 - ADJOURNED MEETINGS AND NOTICE THEREOF
Any shareholders' meeting, annual or special, whether or not a
quorum is present, may be adjourned from time to time by the vote of the
majority of the shares which are represented at the meeting either in person or
by proxy, but in the absence of a quorum.
It shall not be necessary to give any notice of an adjournment or of
the business to be transacted at an adjourned meeting other than by announcement
at the meeting at which such adjournment is taken. However, when any
shareholders' meeting, either annual or special, is adjourned for more than 45
days, or if after the adjournment a new record date is fixed for the adjourned
meeting notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting. At any adjourned meetings, the
corporation may transact any business that might have been transacted at the
regular meeting.
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2.07 - RECORD DATE FOR SHAREHOLDERS OF RECORD
For purposes of determining which shareholders are entitled to
receive notice of any meeting, to vote, or to give consent to corporate action
without a meeting, the board of directors may fix a record date in advance of
such meeting or corporate action which shall not be less than 10 nor more than
60 days before any such meeting or any such action without a meeting. Only
shareholders of record at the close of business on the date so fixed are
entitled to notice and to vote or to give consent, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided in the articles of incorporation,
by agreement, or in the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held; and
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the 60th day before the date of such other action,
whichever is later.
2.08 - VOTING AT MEETINGS
Except as otherwise provided in the articles of incorporation and in
the case of cumulative voting for directors, each shareholder is entitled to one
vote per share. The shareholders'
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vote may be by voice vote or by ballot; provided, however, that any election for
directors must be by ballot if demanded by any shareholder before the voting has
begun. On any matter other than the election of directors, any shareholder may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but if the shareholder fails
to specify the number of shares which the shareholder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving vote is with
respect to all shares that the shareholder is entitled to vote. The affirmative
vote of a majority of the shares represented and voting, provided such shares
voting affirmatively also constitutes a majority of the number of shares
required for a quorum, shall be the act of the shareholders, unless the vote of
a greater number or voting by classes is required by California General
Corporation Law or by the articles of incorporation. Every shareholder entitled
to vote at any election for directors shall have the right to cumulate his votes
by (i) giving one candidate a number of votes equal to the number of directors
to be elected multiplied by the number of votes to which his shares are
entitled, or (ii) distributing such cumulated votes on the same principle among
as many candidates as he chooses; provided that the name of such candidate has
been placed in nomination prior to the voting and that at least one shareholder
has given notice at the meeting, prior to the voting, of an intention to
cumulate votes. In any election of directors, the candidates receiving the
highest number of votes, up to the number of directors to be elected, shall be
elected. Votes against a director or not cast shall have no effect.
2.09 - QUORUM
The presence in person or by proxy of persons entitled to vote a
majority of the voting shares at any meeting shall constitute a quorum of the
shareholders for the transaction of business.
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The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of one or more shareholders to leave less than a quorum, if any
action taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
2.10 - CONSENT OF ABSENTEES
The transactions of any meeting of shareholders, either annual or
special, however called and noticed and wherever held, shall be as valid as
though made at a meeting duly held after regular call and notice if a quorum is
present either in person or by proxy and if, either before or after the meeting,
each of the shareholders entitled to vote who was not present in person or by
proxy signs a written waiver of notice or a consent to the holding of such
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify either the business to be transacted or the purpose of any
annual or special meeting of shareholders, unless the action taken or proposed
to be taken is for approval of any of those matters specified in Section 2.04.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance at a meeting, in person or by proxy, shall also
constitute a waiver of notice of that meeting, except when the person objects at
the beginning of the meeting to the trans action of any business because the
meeting has not been lawfully called or convened, and except that attendance at
a meeting is not a waiver of any right to object to the consideration of matters
required by law to be included in the notice of the meeting but not so included,
if that objection is expressly made at the meeting.
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2.11 - ACTION WITHOUT MEETING
Except as may be limited by the articles of incorporation and except
for the election of directors, any action which may be taken by vote of the
shareholders at any annual or special meeting may be taken without a meeting and
without prior notice if a consent in writing setting forth the action so taken
is signed by the holders of outstanding shares 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.
Directors may be elected by written consent without a meeting only if the
written consents of all outstanding shares entitled to vote are obtained, except
that a vacancy in the board (other than a vacancy created by removal of a
director) not filled by the board may be filled by the written consent of the
holders of a majority of the outstanding shares entitled to vote.
All such consents shall be filed and maintained in the corporate
records. Any shareholder (or the shareholder's proxyholders, or a transferee of
the shares or a personal representative of the shareholder or their respective
proxyholders) giving a written consent may revoke the consent only by a writing
received by the corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary of the corporation. Such revocation is effective upon its receipt
by the secretary of the corporation.
Unless the consents of all shareholders entitled to vote have been
solicited in writing:
(1) Notice of shareholder approval without a meeting by less than
unanimous written consent shall be given at least 10 calendar days before
the consummation of the action authorized by such approval, if the
corporate action concerns (i) a contract or
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transaction in which a director has a direct or indirect financial
interest under Section 310 of the California Corporations Code, (ii)
indemnification of agents of the corporation, (iii) reorganization of the
corporation, or (iv) a distribution in dissolution other than in
accordance with the rights of the outstanding preferred shares; and
(2) Prompt notice shall be given of any other corporate action
approved by shareholders without a meeting by less than unanimous written
consent.
All such notices shall be given in the manner provided by Section 2.05.
2.12 - PROXIES
Every person entitled to vote for directors or on any other matter
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the shareholder's
attorney-in-fact. A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked, or by attendance
at the meeting and voting in person by the person executing the proxy, or by a
subsequent proxy executed by the same person and presented at the meeting; or
(ii) written notice of the death or incapacity of the maker of that proxy is
received by the corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the expiration of 11
months from the date of the proxy, unless another term of longer or shorter
duration is specified in the proxy. The revocability of a proxy that states on
its face that
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is irrevocable shall be governed by the provisions of Sections 705(e) and 705(f)
of the Corporations Code of California.
ARTICLE III - DIRECTORS
3.01 - POWERS
Except as reserved to the shareholders by law, the articles of
incorporation or these bylaws, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
controlled by, the board of directors. Without limiting the generality of the
foregoing powers, the directors shall have the following powers:
First:To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law or with the articles of incorporation or these bylaws, as they may deem
best.
Second: To select and remove the officers, agents and employees of
the corporation, to prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or with these bylaws
and to fix their compensation.
Third:To change the principal executive and business office of the
corporation from one location to another as provided in Section 1.01; to fix and
locate from time to time one or more branch offices of the corporation within or
without the State of California, as provided in Section 1.02; to designate any
place within or without the State of California for the holding of any
shareholders' meeting or meetings except annual meetings; and to adopt, make and
use a corporate seal, to prescribe the forms of certificates of stock and to
alter the form of such seal and of such certificates from time to time as in
their judgment they may deem best, provided that such seal and such certificates
shall at all times comply with the provisions of law.
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Fourth: To authorize the issue of shares of stock of the corporation
from time to time, upon such terms as may be lawful, as dividends or in
consideration of money paid, labor done or services actually rendered to the
corporation or for its benefit or in its formation or reorganization, debts or
securities cancelled, or tangible or intangible property actually received; but
neither promissory notes of the purchaser, unless secured by property other than
the shares acquired or otherwise permitted by Section 408 of the General
Corporation Law, nor future services shall constitute payment or part payment
for shares of the corporation.
Fifth:To borrow money and incur indebtedness for the purposes of the
corporation and to cause to be executed and delivered therefor, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations or other evidences of debt and securities therefor.
Sixth:To designate, by resolution adopted by a majority of the
authorized number of directors, one or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Any such committee
shall have all the authority of the board to the extent provided in the
resolution of the board or in the bylaws, except with respect to:
(a) The approval of any action for which, under the General
Corporation Law of California, also requires approval of the shareholders or
approval of the outstanding shares;
(b) The filling of vacancies on the board or in any committee;
(c) The fixing of compensation of the directors for serving on the
board or on any committee;
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(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation, except at
a rate, in a periodic amount or within a price range set forth in the articles
or determined by the board; or
(g) The appointment of other committees of the board or the members
thereof. Seventh: To declare dividends at such times and in such amounts as the
condition of the affairs of the corporation may warrant.
Eighth: Generally to exercise all of the powers and to perform all
of the acts and duties that from time to time may be permitted by law
appertaining to their office.
3.02 - NUMBER OF DIRECTORS
The authorized number of directors of the corporation shall be three
until changed by an amendment of this bylaw.
3.03 - ELECTION AND TERM OF OFFICE
The directors shall be elected at each annual meeting of
shareholders and may be elected at any special meeting of shareholders held for
that purpose. Each director shall hold office until his successor is elected and
qualified, or until his earlier death, resignation, removal or ineligibility.
3.04 - REMOVAL
A director may be removed for cause by (i) the board, when such
director has been convicted of a felony or declared incompetent by court order,
or (ii) the superior court, at the suit of at least 10% of the shareholders of
any class of shares having found that the director has either
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committed fraudulent or dishonest acts, or has grossly abused his authority with
reference to the corporation.
A director may be removed without cause by a majority vote of all
outstanding shares, provided that (i) where cumulative voting is in effect, such
director may not be removed over the objection of the number of shares required
to elect him, and (ii) where the articles of incorporation provide for the
election of a director by the shareholders of a certain class or series of
shares, such director may be removed only by the majority vote of the
outstanding shares of such class or series.
Except as provided in this Section 3.04, and any reduction of the
authorized number of directors notwithstanding, a director may not be removed
prior to the expiration of such director's term of office.
3.05 - VACANCIES
Vacancies in the board of directors may be filled by a majority of
the remaining directors, though less than a quorum, or by a sole remaining
director. A vacancy in the board of directors shall be deemed to exist (i) in
case of the death, resignation, ineligibility or removal of any director, (ii)
if the authorized number of directors is increased, or (iii) if the shareholders
fail, at any annual or special meeting of shareholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors. In the event that
such a vacancy is created by an event other than removal, any election by
written consent of the shareholders must be signed by holders of a majority of
the outstanding shares. If the board of directors accepts the resignation of a
director tendered to
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take effect at a future time, the board or the shareholders shall have the power
to elect a successor to take office when the resignation is to become effective.
3.06 - MEETINGS BY TELEPHONE CONFERENCE
Members of the board may participate in a meeting through use of
conference telephone or similar communication equipment, so long as all members
participating in such meeting can hear one another.
3.07 - ACTION WITHOUT MEETING
Any action required or permitted to be taken by the board of
directors or any committee thereof may be taken without a meeting if each member
of the board consents in writing to such action. Such consents shall be filed
with the minutes of the meetings of the board.
3.08 - ORGANIZATION MEETING
Immediately following each annual meeting of shareholders, the board of
directors shall hold a regular meeting for the purpose of organization, election
of officers and the transaction of other business. Notice of such meeting is
hereby dispensed with.
3.09 - SPECIAL MEETINGS
Special meetings of the board of directors for any purpose or
purposes may be called at any time by (i) the chairman of the board, (ii) the
president, (iii) any vice president, (iv) the secretary, or (v) any two
directors.
Written notice of the time and place of special meetings shall be
delivered personally to the directors or sent to each director by mail or by
other form of written communication, charges prepaid, addressed to him at his
address as it appears upon the records of the corporation or, if it is not so
shown or is not readily ascertainable, at the place in which the meetings of
directors are
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regularly held. In case such notice is mailed, it shall be deposited in the
United States mail at least four days prior to the date of the meeting. In case
such notice is delivered personally or telegraphed, it shall be so delivered or
deposited with the telegraph company at least 48 hours prior to the time of the
meeting.
3.10 - ADJOURNMENT
A majority of the directors present, whether or not a quorum is
present, may adjourn any directors meeting to another time and place. If a
meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given in the manner specified in Section 3.09
prior to the time of the adjourned meeting to the directors who were not present
at the time of adjournment.
3.11 - WAIVER OF NOTICE
The transactions at any meeting of the board of directors, however
called and noticed, or wherever held, shall be as valid as though such
transactions had occurred at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice of or consent to holding
the meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
3.12 - QUORUM
A majority of the authorized number of directors then holding office
shall constitute a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present shall be the
act of the board of directors, unless a greater number is required by law, the
articles of incorporation or these bylaws. However, a meeting at which a quorum
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is initially present may continue to transact business notwithstanding the
withdrawal of directors if any action taken is approved by at least a majority
of the required quorum for such meeting. The provisions of this Section 3.12
shall apply to action taken by any committee from time to time designated by the
board of directors.
ARTICLE IV - OFFICERS
4.01 - OFFICERS
The officers of the corporation shall be a president, a secretary, a
treasurer, and such other officers with such titles and duties as may be
appointed in accordance with the provisions of Section 4.09. Any number of
offices may be held by the same person. The president shall be the chief
executive officer and the treasurer shall be the chief financial officer.
4.02 - ELECTION
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 4.04 or 4.09, shall be
chosen annually by the board of directors; and each officer shall hold his
office until he has resigned or removed or is otherwise disqualified to serve
and his successor has been elected and qualified.
4.03 - REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by a
majority of the directors at the time in office, at any regular or special
meeting of the board, or, except in the case of an officer chosen by the board
of directors, by any officer upon whom such power of removal may be conferred by
the board of directors.
Any officer may resign at any time by giving written notice to the
board of directors or to the president or to the secretary of the corporation.
Any such resignation shall take effect at the
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date of the receipt of such notice or any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
4.04 - VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
4.05 - CHAIRMAN OF THE BOARD
The chairman of the board, if one has been appointed, shall, if
present, preside at all meetings of the board of directors and exercise and
perform all such other powers and duties as may from time to time be assigned to
him by the board of directors or prescribed by these bylaws.
4.06 - PRESIDENT
The president, subject to the board of directors, shall have general
supervision, direction and control of the business and of other officers and
employees of the corporation. He shall preside at all meetings of the
shareholders and, if there is no regular, appointed chairman of the board or if
such chairman is absent, at all meetings of the board of directors. He shall be
ex officio a member of all standing committees, including the executive
committee, if any, and shall have general powers and duties of management,
together with such other powers and duties as may be prescribed by the board of
directors.
The board of directors, in its sole discretion, may elect two
persons to serve as Co-Presidents of the Corporation. In such event either
Co-President, acting independently, may perform the duties of the President as
described in these bylaws.
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4.07 - SECRETARY
The secretary shall keep, or cause to be kept, a book of minutes at
the principal executive and business office, or such other place as the board of
directors may order, of all meetings of directors and shareholders, with the
time and place of holding, whether regular or special and, if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders' meetings
and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive and business office or at the office of the corporation's transfer
agent, a share register or a duplicate share register showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and the date of certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the board of directors required by these
bylaws or by law to be given, shall keep the seal of the corporation in safe
custody and shall have such other powers and shall perform such other duties as
may be prescribed by the board of directors or the bylaws.
4.08 - TREASURER
The chief financial officer shall be the treasurer. The treasurer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares.
The treasurer shall deposit all moneys and other valuables in the
name and to the credit of the corporation with such depositaries as may be
designated by the board of directors. He
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shall be responsible for the proper disbursement of the funds of the corporation
as may be ordered by the board of directors and shall render to the president or
directors, whenever they request it, an account of all of his transactions as
treasurer and of the financial condition of the corporation. The treasurer shall
prepare a proper annual budget of income and expenses for each calendar year,
revised quarterly, for approval of or revision by the board of directors and
shall be responsible for the handling of finances in connection therewith. He
shall have such other powers and shall perform such other duties as may be
prescribed by the board of directors.
4.09 - SUBORDINATE OFFICERS
The board of directors may appoint such vice presidents, assistant
treasurers and assistant secretaries and other subordinate officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in these
bylaws or as the board of directors may from time to time determine.
In the absence or disability of the president, treasurer or
secretary, the vice presidents, assistant treasurers and assistant secretaries,
respectively, in order of their rank as fixed by the board of directors or, if
not ranked, the subordinate officer designated by the board of directors shall
perform all the duties of such absent or disabled officer and, when so acting,
shall have all the powers of and be subject to all the restrictions upon such
officer. Each subordinate officer shall have such other powers and shall perform
such other duties as from time to time may be prescribed for him by the board of
directors or these bylaws.
ARTICLE V - SHARES OF STOCK
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5.01 - SHARE CERTIFICATES
Certificates representing shares of the capital stock of the
corporation shall be in such form as shall be approved by the board of
directors, consistent with the articles of incorporation and the laws of the
State of California. A certificate or certificates for shares of the capital
stock of the corporation shall be issued to each shareholder when such shares
are fully paid, and the board of directors may authorize the issuance of
certificates or shares as partly paid provided that these certificates shall
state the amount of the consideration to be paid for them and the amount paid.
All such certificates shall be signed by (i) the chairman or vice chairman of
the board or the president or a vice president, and (ii) by the treasurer or an
assistant financial officer or the secretary or any assistant secretary,
certifying the number of shares and the class or series of shares issued to the
shareholder and evidenced by such certificate. The corporation may issue, sell
or transfer fractional shares.
5.02 - TRANSFER OF SHARES
Subject to the provisions of applicable securities and other laws
and any other valid contractual and other restrictions on transfer of shares,
upon the surrender to the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
5.03 - LOST OR DESTROYED CERTIFICATE
The holder of any shares of stock of the corporation shall
immediately notify the corporation of any loss or destruction of the certificate
therefor, and the corporation may issue a new certificate in the place of any
certificate theretofore issued by it alleged to have been lost or
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destroyed, upon approval of the board of directors. The board may, in its
discretion, as a condition to authorizing the issue of such new certificate,
require the owner of the lost or destroyed certificate, or his legal
representative, to make proof satisfactory to the corporation of the loss or
destruction thereof and to give the corporation a bond or other security, in
such amount and with such surety or sureties as the corporation may determine,
as indemnity against any claim that may be made against the corporation on
account of any such certificate so alleged to have been lost or destroyed.
ARTICLE VI - MISCELLANEOUS
6.01 - INDEMNITY OF OFFICERS, DIRECTORS AND EMPLOYEES
The corporation shall, to the fullest extent permitted by the
California General Corporation Law (the "Code") and in excess of that which is
otherwise provided by Code Section 317, indemnify each of the directors,
officers, and employees of the corporation and each person who is or was serving
at the request of the corporation as a director, officer, or employee of another
corporation (including without limitation direct and indirect subsidiaries of
the corporation) or a partnership, joint venture, trust, or other enterprise
(all such persons being hereinafter collectively referred to as "Indemnified
Persons") against all judgments, fines, penalties, amounts paid in settlement
(if the settlement is approved in advance by the corporation (or, where
applicable, such other corporation or other enterprise described in this
sentence) , which approval shall not be unreasonably withheld or delayed), and
"expenses" (as hereinafter defined) actually and reasonably incurred by the
Indemnified Person in connection with any "proceeding" (as hereinafter defined)
involving the Indemnified Person by reason of the fact that the Indemnified
Person is or was a director, officer, or employee of the corporation or, acting
at the request of the corporation, any other corporation, partnership, joint
venture, trust, or other enterprise. For purposes hereof, "expenses"
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include by way of illustration but not limitation all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being prepared to be a
witness in any "proceeding." For purposes hereof, a "proceeding" shall include
by way of illustration but not limitation any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative hearing,
or any other proceeding, whether civil, criminal, administrative, or
investigative, and whether brought by or on behalf of a third party or by or on
behalf of the corporation.
Upon written request to the Board in each specific case by an
Indemnified Person seeking indemnification, the Board shall promptly authorize
indemnification consistent with the terms of the preceding paragraph if the
Board determines that the indemnification is not prohibited by the Code,
including by reason of the requirements of Code Sections 204(a)(10) and (11)
and, in the case of an action by or in the right of the corporation to procure a
judgment in its favor, subsections (1) , (2), and (3) of Code Section 317(c).
The termination of any proceeding by judgment, order, settlement, conviction, or
upon plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that an Indemnified Person did not act in good faith and in a manner
which the Indemnified Person reasonably believed to be in or not opposed to the
best interests of the corporation or, with respect to any criminal proceeding,
had no reasonable cause to believe that the conduct of the Indemnified Person
was unlawful.
If an Indemnified Person is entitled to indemnification by the
corporation for some or a portion of any judgments, fines, penalties, amounts
paid in settlement, or expenses actually and
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reasonably incurred by the Indemnified Person in connection with any proceeding,
but not, however, for the total amount thereof, the corporation shall
nevertheless indemnify the Indemnified Person for the portion of such amounts to
which the Indemnified Person is entitled.
Upon written request to the Board in each specific case by an
Indemnified Person, the Board shall promptly authorize the advancement of
attorneys' fees and other expenses incurred by the Indemnified Person prior to
the final disposition of a proceeding in which the Indemnified Person is
involved by reason of the fact that the Indemnified Person is or was a director,
officer, or employee of the corporation or, acting at the request of the
corporation, any other corporation, partnership, joint venture, trust, or other
enterprise, but only if the Board obtains the written agreement of the
Indemnified Person, in a form satisfactory to the Board, to repay the advances
if and to the extent that it is ultimately determined that the Indemnified
Person is not entitled to be indemnified by the corporation for the attorneys'
fees and other expenses so advanced.
If an Indemnified Person makes a written request to the Board for
indemnification and the requested indemnification is not paid in full by the
corporation within forty-five (45) days after the date of the written request,
the Indemnified Person shall also be indemnified for the attorneys' fees and
other expenses of any proceeding brought by the Indemnified Person against the
corporation to recover the unpaid requested indemnified amount. It shall be a
defense in any such proceeding that the Indemnified Person has not satisfied the
standards of conduct which make it permissible under applicable law for the
corporation to indemnify the Indemnified Person for the amount claimed, but the
burden of proving such defense shall be on the corporation and the Indemnified
Person shall be entitled to receive interim payments of attorneys' fees and
other
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expenses in connection with the proceeding unless and until such defense is
finally adjudicated by court order or judgment from which no further right of
appeal exists.
If, at the time of the receipt of a written request for
indemnification by an Indemnified Person, the corporation has director and
officer liability insurance in effect, the corporation shall give prompt notice
of the commencement of the proceeding described in the notice to the
corporation's insurers in accordance with the procedures set forth in the
respective policies. The corporation shall thereafter take all necessary or
appropriate action to cause such insurers to pay on behalf of the Indemnified
Person all amounts payable as a result of such proceeding in accordance with the
terms of such policies. The provisions of this paragraph shall not be construed
to impose upon the corporation any obligation to obtain or maintain director and
officer liability insurance.
The indemnification rights conferred hereby shall continue as to any
Indemnified Person who has ceased to be a director, officer, or employee of the
corporation or any other corporation, partnership, joint venture, trust, or
other enterprise for which the Indemnified Person was serving as a director,
officer, or employee at the request of the corporation, and shall inure to the
benefit of the heirs, executors, administrators, and any other
successors-in-interest of the Indemnified Person.
In the event of any change after the date of the adoption by the
corporation of this Section 6.01 in any applicable law, statute, or rule which
expands the right of a California corporation to indemnify its directors,
officers, or employees, such change shall be ipso facto within the purview of
the corporation's obligations hereunder. In the event of any change in any
applicable law, statute, or rule which narrows the right of a California
corporation to indemnify its directors, officers, or employees, such change, to
the extent not otherwise required by such law, statute,
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or rule to be applied to the corporation, shall have no effect on the
indemnification obligations of the corporation.
6.02 - SHAREHOLDER INSPECTION OF ARTICLES AND BYLAWS
The corporation shall keep at its principal executive and business
office the original or a copy of the articles of incorporation and the bylaws
and any amendments thereto, certified by the secretary, which shall be open to
inspection by shareholders at all reasonable times during office hours.
6.03 MAINTENANCE AND INSPECTION OF RECORDS OF SHAREHOLDERS
The corporation shall keep at its principal executive and business office or at
the office of its transfer agent or registrar (if one has been appointed), as
determined by resolution of the board of directors, a record of its
shareholders, giving the names and addresses of all shareholders and the number
and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at least 5%
in the aggregate of the outstanding voting shares of the corporation may (i)
inspect and copy the records of share holders' names, addresses and
shareholdings, during usual business hours on five business days' prior written
demand on the corporation, and (ii) obtain from the transfer agent of the
corporation, on written demand and on the tender of such transfer agent's usual
charges for such list, a list of the names and addresses of the shareholders who
are entitled to vote for the election of directors, and their shareholdings, as
of the most recent record date for which that list has been compiled or as of a
date specified by the shareholder after the date of demand. This list shall be
made available to any such shareholder or shareholders by the transfer agent on
or before the later of five business days after the demand is received or the
date specified in the demand as the date as of which the list is to
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be compiled. The record of shareholders shall also be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as the holder of a voting trust
certificate. Any inspection and copying under this Section may be made in person
or by an agent or attorney of the shareholder or holder of a voting trust
certificate making the demand.
6.04 - SHAREHOLDER INSPECTION OF CORPORATE RECORDS
The accounting books and records and minutes of proceedings of the
shareholders and the board of directors and any committee or committees of the
board of directors shall be kept at such place or places designated by the board
of directors or, in the absence of such designation, at the principal executive
and business office of the corporation. The minutes shall be kept in written
form, and the accounting books and records shall be kept either in written form
or in any other form capable of being converted into written form. The minutes
and accounting books and records shall be open to inspection upon the written
demand of any shareholder or holder of a voting trust certificate, at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney and
shall include the right to copy and make extracts. These rights of inspection
shall extend to the records of each subsidiary corporation of the corporation.
6.05 - INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable time
to inspect all books, records and documents of every kind and the physical
properties of the corporation and each
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of its subsidiary corporations. This inspection by a director may be made in
person or by an agent or attorney, and the right of inspection includes the
right to copy and make extracts of documents.
6.06 - REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The president or, in the event of his absence or inability to serve,
any vice president and the secretary or assistant secretary of this corporation
are authorized to vote, represent and exercise, on behalf of this corporation,
all rights incidental to any and all shares of any other corporation standing in
the name of this corporation. The authority herein granted to such officers to
vote or represent on behalf of this corporation any and all shares held by this
corporation in any other corporation may be exercised either by such officers in
person or by any person authorized to do so by proxy or power of attorney duly
executed by such officers.
6.07 - ANNUAL REPORT
The annual report to shareholders referred to in Section 1501(a) of
the California Corporations Code is expressly waived subject to the limitations
thereof, but the board of directors of the corporation may cause to be sent to
the shareholders, not later than 120 days after the close of the fiscal or
calendar year, an annual report in such form as may be deemed appropriate by the
board of directors.
6.08 - ANNUAL STATEMENT OF GENERAL INFORMATION
Within 90 days of incorporation and annually thereafter, the
corporation shall file with the Secretary of State, on the prescribed form, a
statement setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent directors, the names
and complete business or residence addresses of the chief executive officer,
secretary and chief financial officer, the street address of its principal
executive office or principal business office
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in this state, and the general type of business constituting the principal
business activity of the corporation, together with a designation of the agent
of the corporation for the purpose of service of process, all in compliance with
section 1502 of the California Corporations Code.
ARTICLE VII - AMENDMENTS TO BYLAWS
7.01 - AMENDMENT BY SHAREHOLDERS
New bylaws may be adopted or these bylaws may be amended or repealed
by the vote or written consent of the shareholders entitled to exercise a
majority of the voting power of the corporation, except as otherwise provided by
either these bylaws or the articles of the corporation; provided, however, that
if the articles of incorporation set forth the number of authorized directors of
the corporation, the authorized number of directors may be changed only by an
amendment of the articles of incorporation.
7.02 - AMENDMENT BY DIRECTORS
Subject to the rights of the shareholders as provided in Section
7.01 to adopt, amend or repeal bylaws, bylaws may be adopted, amended, or
repealed by the board of directors; provided, however, that the board of
directors may adopt a bylaw or amendment of a bylaw changing the authorized
number of directors only for the purpose of fixing the exact number of directors
within the limits specified in the articles of incorporation or in Section 3.02
of these bylaws.
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CERTIFICATE OF SECRETARY
The undersigned, being the duly elected, qualified and acting
Secretary of WOLFGANG RECORDS, a California corporation, does hereby certify
that the foregoing Bylaws, comprising 28 pages, are the Bylaws of such
corporation, as duly adopted by written consent of the board of directors on the
date hereof.
Dated at San Francisco, California effective the third day of May,
1995.
/s/ Franklin D. Rockwell, Jr.
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FRANKLIN D. ROCKWELL, JR.
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