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As filed with the Securities and Exchange Commission on February 13, 1997
Registration No.
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
JACOR COMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 31-0978313
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(State of incorporation or organization) (I.R.S. Employer Identification Number)
50 EAST RIVERCENTER BOULEVARD
12TH FLOOR
COVINGTON, KENTUCKY 41011
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
NONE NONE
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If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant
to General Instruction A(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK PURCHASE WARRANTS
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the securities contained in Jacor Communications,
Inc.'s Registration Statement on Form S-4 filed with the Securities and
Exchange Commission on February 4, 1997, and, together with all amendments
thereto, now or hereafter filed, is hereby incorporated by reference into
this registration statement.
ITEM 2. EXHIBITS.
I. Listed below are the exhibits filed as a part of this registration
statement:
1. Agreement and Plan of Merger dated as of October 8,
1996 ("Regent Merger Agreement") between Jacor
Communications, Inc. ("Jacor") and Regent
Communications, Inc. (omitting schedules and exhibits
not deemed material). Incorporated by reference to
Exhibit 2.1 to Jacor's Current Report on Form 8-K dated
October 23, 1996.
2. Form of Warrant Agreement ("Warrant Agreement") between
Jacor and KeyCorp Shareholder Services, Inc., as
warrant agent (included as Exhibit B to Regent Merger
Agreement). Incorporated by reference to Exhibit 2.2
to Jacor's Current Report on Form 8-K dated October 23,
1996.
3. Registration Rights Agreement dated as of October 8,
1996 among Jacor and the parties listed in Schedule I
thereto (included as Exhibit I to Regent Merger
Agreement). Incorporated by reference to Exhibit 2.4
to Jacor's Current Report on Form 8-K dated October 23,
1996.
4. Form of Common Stock Purchase Warrants (attached as
Exhibit A to the Warrant Agreement). Incorporated by
reference to Exhibit 2.2 to the Registrant's Current
Report on Form 8-K dated October 23, 1996.
5. The Registrant's Certificate of Incorporation.
6. The Registrant's Bylaws.
II. Not applicable.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: February 13, 1997 Jacor Communications, Inc.
By: /s/Jon M. Berry
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Name: Jon M. Berry
Title: Senior Vice President
and Treasurer
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EXHIBIT 5
CERTIFICATE OF INCORPORATION
OF
JACOR COMMUNICATIONS, INC.
FIRST: The name of the Corporation is Jacor Communications, Inc.
(the "Corporation").
SECOND: The address of the registered office of the Corporation is
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of the registered agent at that address is The
Corporation Trust 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 Delaware. The Corporation shall have all of the powers
granted or permitted by the laws of the State of Delaware to corporations
organized under its General Corporation Law.
FOURTH: The maximum aggregate number of shares which the Corporation
is authorized to have outstanding is One Hundred Four Million (104,000,000)
shares, divided into three classes. The first class consists of One Hundred
Million (100,000,000) shares of Common Stock, with a par value of $.01 (the
"Common Stock"). The second class consists of Two Million (2,000,000) shares of
Class A preferred stock, with a par value of $.01 (the "Class A Preferred
Stock"). The third class consists of Two Million (2,000,000) shares of Class B
preferred stock, with a par value of $.01 (the "Class B Preferred Stock", which
together with the Class A Preferred Stock is referred to herein as the
"Preferred Stock"). The Preferred Stock is senior to the Common Stock, and the
Common Stock is subject to the rights and preferences of the Preferred Stock as
hereinafter set forth.
(a) DIVIDENDS ON COMMON STOCK. So long as any Preferred Stock shall
remain outstanding, no dividend shall be declared or paid or any distribution
made on the Common Stock or on any other class of shares junior to the Preferred
Stock, and no shares of Common Stock or of any other class junior to the
Preferred Stock shall be purchased or retired, and no moneys shall be made
available for a sinking fund for such purpose unless dividends for all past
dividend periods shall have been paid or declared (and funds for the payment
thereof set apart) on all outstanding Preferred Stock of all series. Subject to
the above provisions, and not otherwise, dividends may be paid from time to time
on the Common Stock or other junior issues out of funds legally available for
the purpose as and when declared by the Board of Directors.
(b) LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution, or winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of the Preferred
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Stock of each series shall be entitled to be paid in full the liquidation
price fixed by the Board of Directors for the respective series at or before
the time of issuance thereof, plus an additional amount equal to any accrued
unpaid dividends. All such payments or distributions to or among the holders
of the Preferred Stock are to be made before any sum shall be paid to or
distributed among the holders of the Common Stock. Liquidation rights of
different classes or series of Preferred Stock shall be as determined by the
Board of Directors pursuant to Article Fourth, Section (f) below.
(c) VOTING RIGHTS. The holders of Common Stock and Class A Preferred
Stock shall have full voting rights (provided that, except as otherwise required
by law, the Common Stock and the Class A Preferred Stock shall vote together and
not separately). The holders of Class B Preferred Stock shall not be entitled
to vote at meetings of the shareholders of the Corporation or to receive notice
of such meetings, except as otherwise provided herein or as required by law or
as lawfully fixed by the Board of Directors with respect to each series of Class
B Preferred Stock.
(d) PREEMPTIVE RIGHTS. No holder of shares of Common Stock or
Preferred Stock shall be entitled as a matter of right to subscribe for or
purchase any part of any new or additional issue of shares, or securities
convertible into shares of any kind whatsoever, whether now or hereafter
authorized, and whether issued for cash, property, services, by way of
dividends, or otherwise.
(e) CONVERSION. The holders of Common Stock shall have no right to
convert their shares to shares of any other class or any other series.
(f) PREFERRED STOCK. The Board of Directors is authorized, subject
to any limitations prescribed by law, to provide from time to time for the
issuance of the shares of the Class A Preferred Stock and the Class B Preferred
Stock in series, and to establish, by resolution, without shareholder approval,
the characteristics of each series including the following:
(1) SERIES. The number of shares of that series, which may
subsequently be increased or decreased (but not below the number of shares of
that series then outstanding) by resolution of the Board of Directors, and the
distinctive designation thereof;
(2) DIVIDENDS. The rights in respect of dividends on the shares
of that series, whether dividends shall be cumulative and if so, from which date
or dates and the relative rights or priority, if any, of payment of dividends on
shares of that series and any limitations, restrictions or conditions on the
payment of dividends;
(3) VOTING RIGHTS. The voting rights, if any, with respect to
that series;
(4) LIQUIDATION RIGHTS. The relative amounts, and the relative
rights or priority, if any, of payment in respect of shares of that series,
which the holders of the shares of that series shall be entitled to receive upon
any liquidation, dissolution or winding up of the Corporation;
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(5) REDEMPTION. The terms and conditions (including the price
or prices, which may vary under different conditions and at different redemption
dates), if any, upon which all or any part of the shares of that series may be
redeemed, and any limitations, restrictions or conditions on such redemption;
(6) RETIREMENT. The terms, if any, of any purchase, retirement
or sinking fund to be provided for the shares of that series;
(7) CONVERSION. The terms, if any, upon which the shares of
that series shall be convertible into or exchangeable for shares of any other
class, classes or series, or other securities, whether or not issued by the
Corporation;
(8) RESTRICTIONS ON INDEBTEDNESS. The restrictions, limitations
and conditions, if any, upon issuance of indebtedness of the Corporation so long
as any shares of that series are outstanding; and
(9) MISCELLANEOUS. Any other preferences and relative,
participating, optional or other rights and limitations of that series not
inconsistent with law, the provisions of this Section (f) or any resolution of
the Board of Directors pursuant hereto (including preferences, rights and
limitations of that series relative to the common stock or other preferred stock
of the Corporation).
FIFTH: Whenever a compromise or arrangement is proposed between
the Corporation and its creditors, or any class of them, and/or between the
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 the Corporation or of any creditor or stockholder thereof, or
on the application of any receiver or receivers appointed for the Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code, or on
the application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of Section 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 the 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 of
class of creditors, and/or of the stockholders or class of stockholders of
the Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of the 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 the
Corporation, as the case may be, and also on the Corporation.
SIXTH: A Director of the Corporation shall not be personally
liable to the Corporation or any stockholder for monetary damages for breach
of fiduciary duty as a Director, except that this Article Sixth shall not
eliminate or limit a Director's liability (i) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good
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faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the Director derived an improper personal benefit.
If the Delaware General Corporation Law is amended after the filing of the
Certificate of Incorporation of which this Article Sixth is a part to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
Sixth by the stockholders of the Corporation shall not increase the personal
liability of any Director of the Corporation for any act or occurrence taking
place prior to such repeal or modification, or otherwise adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
The Corporation shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, as amended from time to time, indemnify
all persons who are eligible for indemnification pursuant thereto. The
provisions of the Article Sixth shall not be deemed to limit or preclude
indemnification of a Director by the Corporation for any liability of a Director
which has not been eliminated by the provisions of this Article Sixth.
SEVENTH: The following provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders:
(a) GENERAL POWERS OF THE BOARD OF DIRECTORS. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors. In addition to the powers and authority expressly conferred
upon them by status or by the Certificate of Incorporation or the Bylaws of the
Corporation, the Directors are hereby empowered to exercise all such powers and
to do such things and acts as may be exercised or done by the Corporation.
(b) ADDITIONAL POWERS OF THE BOARD OF DIRECTORS. The Board of
Directors shall have the power, without the vote or assent of the stockholders
and subject to the restrictions set forth herein and to the rights of the
holders of the Common Stock and Preferred Stock then outstanding:
(1) CERTAIN ACTS. To make, alter, amend, change, add to or
repeal the Bylaws of the Corporation; to fix and vary an amount to be reserved
for any proper purpose; to incur indebtedness and authorize and cause to be
executed mortgages and liens upon all or any part of the property of the
Corporation; to determine the use and disposition of any surplus or net profit;
and to fix the times for declaration and payment of dividends.
(2) CONTRACTS. The directors, in their discretion, may submit
any contract or act for approval or ratification at any annual meeting of the
stockholders, or at any special meeting of the stockholders called for the
purpose of considering any such act or contract, and any contract or act that
shall be approved or be ratified by the vote of the holders of a majority of the
stock of the
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Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and binding upon
the Corporation and upon all the stockholders as though it had been approved
or ratified by every stockholder of the Corporation, whether or not the
contract or act would otherwise be open to attack because of directors'
interest or for any other reason.
EIGHTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
NINTH: Notwithstanding any other provision of this Certificate of
Incorporation to the contrary, outstanding shares of stock of the Corporation
shall always be subject to redemption by the Corporation, by action of the Board
of Directors, if in the judgment of the Board of Directors such action should be
taken, pursuant to Section 151(b) of the Delaware General Corporation Law or any
other applicable provision of law, to the extent necessary to prevent the loss
or secure the reinstatement of any license or franchise from any governmental
agency held by the Corporation or any of its subsidiaries to conduct any portion
of the business of the Corporation or any of its subsidiaries, which license or
franchise is conditioned upon some or all of the holders of the Corporation's
stock meeting prescribed qualifications and/or restrictions. The terms and
conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant to
this Article Ninth shall be determined by the Board of Directors and shall be at
least equal to the lesser of (i) the Fair Market Value or (ii) if such stock was
purchased by such Disqualified Holder within one year of the Redemption Date,
such Disqualified Holder's purchase price for such shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders are to
be redeemed, the shares to be redeemed shall be selected in such manner as shall
be determined by the Board of Directors, which may include selection first of
the most recently purchased shares thereof, selection by lot or selection in any
other manner determined by the Board of Directors;
(d) at least 30 days' written notice of the Redemption Date shall be
given to the record holders of the shares selected to be redeemed (unless waived
in writing by any such holder), provided that the Redemption Date may be the
date on which written notice shall be given to record holders if the cash or
Redemption Securities necessary to effect the redemption shall have been
deposited in trust for the benefit of such record holders and subject to
immediate withdrawal by them upon surrender of the stock certificates for their
shares to be redeemed;
(e) from and after the Redemption Date, any and all rights of
whatever nature, which may be held by the owners of shares selected for
redemption (including without limitation any
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rights to vote or participate in dividends declared on stock of the same
class or series as such shares), shall cease and terminate and they shall
thenceforth be entitled only to receive the cash or Redemption Securities
payable upon redemption; and
(f) such other terms and conditions as the Board of Directors shall
determine.
For purposes of this Article Ninth:
(i) "Disqualified Holder" shall mean any holder of shares of
stock of the Corporation whose holding of such stock, either
individually or when taken together with the holding of shares of
stock of the Corporation by any other holders, may result, in the
judgment of the Board of Directors, in the loss of, or the failure to
secure the reinstatement of, any license or franchise from any
governmental agency held by the Corporation or any of its subsidiaries
to conduct any portion of the business of the Corporation or any of
its subsidiaries.
(ii) "Fair Market Value" of a share of the Corporation's stock of
any class or series shall mean the average Closing Price for such a
share for each of the 45 most recent days on which shares of stock of
such class or series shall have been traded preceding the day on which
notice of redemption shall be given pursuant to paragraph (d) of this
Article Ninth; PROVIDED, HOWEVER, that if shares of stock of such
class or series are not traded on any securities exchange or in the
over-the-counter market, "Fair Market Value" shall be determined by
the Board of Directors in good faith. "Closing Price" on any day
means the reported closing sales price or, in case no such sale takes
place, the average of the reported closing bid and asked prices on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing
sales price or bid quotation for such stock on the National
Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such prices or quotations are
available, the fair market value on the day in question as determined
by the Board of Directors.
(iii) "Redemption Date" shall mean the date fixed by the
Board of Directors for the redemption of any shares of stock of the
Corporation pursuant to this Article Ninth.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any of its subsidiaries or any other
corporation, or any combination thereof, having such terms and
conditions as shall be approved by the Board of Directors and which,
together with any cash to be paid as part of the redemption price, in
the opinion of any nationally recognized investment banking firm
selected by the Board of Directors (which may be a firm which provides
other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given
pursuant to paragraph (d) of this Article Ninth, at least
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equal to the price required to be paid pursuant to paragraph (a)
of this Article Ninth (assuming, in the case of Redemption
Securities to be publicly traded, such Redemption Securities were
fully distributed and subject only to normal trading activity).
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EXHIBIT 6
BYLAWS OF
JACOR COMMUNICATIONS, INC.
ARTICLE 1
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETING. An annual meeting of the stockholders,
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen (13) months
of the last annual meeting of stockholders or, if no such meeting has been held,
the date of incorporation.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes prescribed in the notice of the
meeting, may be called by one-third (1/3) of the directors then in office
(rounded up to the nearest whole number), by the chief executive officer, or by
stockholders holding at least ten percent (10%) of all issued and outstanding
stock entitled to vote at the meeting. A Special meeting may not be called by
any other person or persons. No business other than that described in the
notice of the special meeting may be transacted at a special meeting of
stockholders.
SECTION 1.3 PLACE OF MEETINGS. Annual and special meetings of
Stockholders shall be held at the principal office of the corporation in the
City of Cincinnati, Ohio, or at any other reasonably convenient location, either
within or without the State of Ohio, to be designated by the Board of Directors.
SECTION 1.4 NOTICE OF MEETINGS. Written notice of the place, date,
and time of all meetings of the stockholders shall be given, not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as required
from time to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the
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adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at
the original meeting.
SECTION 1.5 QUORUM. At any meeting of the stockholders, the
holders of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law. Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes present in person or
represented by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
SECTION 1.6 ORGANIZATION. Such person as the Board of Directors
may have designated or, in the absence of such a person, the chief executive
officer of the Corporation or, in his or her absence, such person as may be
chosen by the holders of a majority of the shares entitled to vote who are
present, in person or by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the
Secretary of the Corporation, the secretary of the meeting shall be such person
as the chairman appoints.
SECTION 1.7 CONDUCT OF BUSINESS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
SECTION 1.8 PROXIES AND VOTING. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted by law
filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or by his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
The Corporation may, and to the extent required by law, shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report
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thereof. The Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding
at the meeting may, and to the extent required by law, shall, appoint one or
more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his ability. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be determined
by a majority of the votes cast affirmatively or negatively.
SECTION 1.9 STOCK LIST. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his or her name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
SECTION 1.10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of the stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, or 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 made by hand or by certified or registered mail,
return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the date of the earliest dated consent delivered to the Corporation, a written
consent or consents signed by a sufficient number of holders to take action are
delivered to the Corporation in the manner prescribed in the first paragraph of
this Section 1.10.
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ARTICLE 2
BOARD OF DIRECTORS
SECTION 2.1 NUMBER AND TERM OF OFFICE. The number of directors who
shall constitute the whole Board shall be such number as the Board of Directors
shall from time to time have designated, except that in the absence of any such
designation, such number shall be seven (7). Each director shall be elected for
a term of one year and until his or her successor is elected and qualified,
except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between
annual meetings of the stockholders, a majority of the directors then in office
shall have the power to elect such new directors for the balance of a term and
until their successors are elected and qualified. Any decrease in the
authorized number of directors shall not become effective until the expiration
of the term of the directors then in office unless, at the time of such
decrease, there shall be vacancies on the board which are being eliminated by
the decrease.
SECTION 2.2 VACANCIES. If the office of any director becomes vacant
by reason of death, resignation, disqualification, removal or other cause, a
majority of the directors remaining in office, although less than a quorum, may
elect a successor for the unexpired term and until his or her successor is
elected and qualified. A resignation from the Board of Directors shall be
deemed to take effect upon its receipt by the Secretary unless some other
effective time is specified therein.
SECTION 2.3 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by two of the directors then in office or by the chief
executive officer and shall be held on such date, and at such time as they or he
or she shall fix. Notice of the place, date, and time of each such special
meeting shall be given each director by whom it is not waived by mailing written
notice not less than seven (7) days before the meeting or by telegraphing or
telexing or by facsimile transmission of the same not less than twenty-four (24)
hours before the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
SECTION 2.5 PLACE OF MEETINGS OF BOARD OF DIRECTORS. All meetings
of the Board of Directors shall be held at the principal office of the
corporation in the City of Cincinnati, Ohio, or at such other reasonably
convenient location, either within or without the State of Ohio, as the Board
may designate from time to time and as may be specified in the notice thereof.
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SECTION 2.6 QUORUM. At any meeting of the Board of Directors, a
majority of the total number of the whole Board shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
SECTION 2.7 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors, or of any committee thereof, 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 such participation shall constitute presence
in person at such meeting.
SECTION 2.8 CONDUCT OF BUSINESS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 2.9 POWERS. The Board of Directors may, except as
otherwise required by law, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including, without
limiting the generality of the foregoing, the unqualified power:
2.9.1 To declare dividends from time to time in accordance with
law;
2.9.2 To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
2.9.3 To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to
do all things necessary in connection therewith;
2.9.4 To remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and
duties of any officer upon any other person for the time
being;
2.9.5 To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees
and agents;
2.9.6 To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors,
officers, employees and agents of the Corporation and its
subsidiaries as it may determine;
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2.9.7 To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may
determine; and,
2.9.8 To adopt from time to time regulations, not inconsistent
with these Bylaws, for the management of the Corporation's
business and affairs.
SECTION 2.10 COMPENSATION OF DIRECTORS. Directors, as such, may
receive, pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
ARTICLE 3
COMMITTEES
SECTION 3.1 COMMITTEES OF THE BOARD OF DIRECTORS. The Board of
Directors, by a vote of a majority of the whole Board, may from time to time
designate committees of the Board, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board and
shall, for those committees and any others provided for herein, elect a
director or directors to serve as the member or members, designating, if it
desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors to
declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at
the meeting and not disqualified from voting, whether or not he or she or
they constitute a quorum, may by unanimous vote appoint another member of the
Board of Directors to act at the meeting in the place of the absent or
disqualified member.
SECTION 3.2 CONDUCT OF BUSINESS. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third (1/3) of the members shall constitute a quorum unless the committee
shall consist of one (1) or two (2) members, in which event one (1) member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
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ARTICLE 4
OFFICERS
SECTION 4.1 GENERALLY. The officers of the Corporation shall
consist of a Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer and such other officers as may from time to time be
appointed by the Board of Directors. Officers shall be elected by the Board of
Directors, which shall consider that subject at its first meeting after every
annual meeting of stockholders. Each officer shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any number of offices may be held by the same person.
SECTION 4.2 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one be elected, shall preside at all meetings of the Board of Directors and
shall have such other powers and duties as may be prescribed by the Board of
Directors.
SECTION 4.3 PRESIDENT. The President shall be the chief executive
officer of the Corporation. Subject to the provisions of these Bylaws and to
the direction of the Board of Directors, he or she shall have the responsibility
for the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which are delegated to him or her
by the Board of Directors. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
SECTION 4.4 VICE PRESIDENT. Each Vice President shall have such
powers and duties as may be delegated to him or her by the Board of Directors.
One (1) Vice President shall be designated by the Board to perform the duties
and exercise the powers of the President in the event of the President's absence
or disability.
SECTION 4.5 TREASURER. The Treasurer shall have the responsibility
for maintaining the financial records of the Corporation. He or she shall make
such disbursements of the funds of the Corporation as are authorized and shall
render from time to time an account of all such transactions and of the
financial condition of the Corporation. The Treasurer shall also perform such
other duties as the Board of Directors may from time to time prescribe.
SECTION 4.6 SECRETARY. The Secretary shall issue all authorized
notices for, and shall keep minutes of, all meetings of the stockholders and the
Board of Directors. He or she shall have charge of the corporate books and
shall perform such other duties as the Board of Directors may from time to time
prescribe.
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SECTION 4.7 DELEGATION OF AUTHORITY. The Board of Directors may
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
SECTION 4.8 REMOVAL. Any officer of the Corporation may be removed
at any time, with or without cause, by the Board of Directors.
SECTION 4.9 ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS. Unless otherwise directed by the Board of Directors, the
President or any officer of the Corporation authorized by the President shall
have power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE 5
STOCK
SECTION 5.1 CERTIFICATES OF STOCK. Each stockholder shall be
entitled to a certificate signed by, or in the name of the Corporation by, the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him or her. Any or all of the signatures on the certificate may be by
facsimile.
SECTION 5.2 TRANSFERS OF STOCK. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with
Section 5.4 of these Bylaws, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate is
issued therefor.
SECTION 5.3 RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or 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 on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that if no record date for determining stockholders shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of
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change, conversion or exchange of stock or for any other purpose, the record
date shall be at the close of business on the day on which the Board of
Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of 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.
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 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 be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date 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 in the manner prescribed by
Section 1.10 hereof. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the Delaware General
Corporation Law with respect to the proposed action by written consent of the
stockholders, the record date for determining stockholders entitled to consent
to corporate action in writing shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
SECTION 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event
of the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
SECTION 5.5 REGULATIONS. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE 6
NOTICES
SECTION 6.1 NOTICES. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
pre-paid telegram or mailgram. Any such notice shall be addressed to such
stockholder, director, office, employee or agent at his or her last known
address as the same appears on the books of the Corporation. The time when such
notice is received, if hand delivered, or dispatched, if delivered through the
mails or by telegram or mailgram, shall be the time of the giving of the notice.
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SECTION 6.2 WAIVERS. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 FACSIMILE SIGNATURES. In addition to the provisions
for use of facsimile signatures elsewhere specifically authorized in these
Bylaws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee
thereof.
SECTION 7.2 CORPORATE SEAL. The Board of Directors may, but need
not, provide a suitable seal, containing the name of the Corporation, which seal
shall be in the charge of the Secretary. If and when so directed by the Board
of Directors or a committee thereof, duplicates of the seal may be kept and used
by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 7.3 RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each
director, each member of any committee designated by the Board of Directors, and
each officer of the Corporation shall, in the performance of his or her duties,
be fully protected in relying in good faith upon the books of account or other
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees or
committees of the Board of Directors so designated, or by any other person as to
matters which such director or committee member reasonably believes are within
such other person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
SECTION 7.4 FISCAL YEAR. The fiscal year of the Corporation shall
be as fixed by the Board of Directors.
SECTION 7.5 TIME PERIODS. In applying any provision of these Bylaws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
ARTICLE 8
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 8.1 RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding,
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whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
an officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
here-after be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as
provided in Section 8.3 with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
SECTION 8.2 RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 8.1 shall include the right to be paid by
the Corporation the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is not
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 8.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Section 8.1 and Section 8.2 of this ARTICLE 8 shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
SECTION 8.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 8.1 or 8.2 of this ARTICLE 8 is not paid in full by the Corporation
within sixty (60) days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty (20) days, the indemnitee may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also to the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee
to enforce a right to indemnification
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hereunder (but not in a suit brought by the indemnitee to enforce a right to
an advancement of expenses) it shall be a defense that, and (ii) in any suit
brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the Corporation shall be entitled to recover
such expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met
the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that
the indemnitee has not met such applicable standard of conduct, shall create
a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a
defense to such suit. In any suit brought by the indemnitee to enforce a
right to indemnification or to an advancement of expenses hereunder, or
brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
ARTICLE 8 or otherwise shall be on the Corporation.
SECTION 8.4 NON-EXCLUSIVITY OF RIGHTS; HEIRS. The right to
indemnification and to the advancement of expenses conferred in this ARTICLE 8
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of Incorporation,
Bylaws, agreement, vote of stockholder or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
SECTION 8.5 INSURANCE. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 8.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this ARTICLE 8 with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE 9
AMENDMENTS
These Bylaws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting.
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