<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 1998
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
AND THE GUARANTORS NAMED IN THE ATTACHED TABLE OF CO-REGISTRANTS
(Exact name of Co-Registrants as specified in their charters)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 4832 75-2451687
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------------
<TABLE>
<S> <C>
(FOR CO-REGISTRANTS, PLEASE SEE "TABLE OF CO-REGISTRANTS" ON THE FOLLOWING PAGE)
JEFFREY A. MARCUS
PRESIDENT AND CHIEF FINANCIAL OFFICER
300 CRESCENT COURT, SUITE 600 300 CRESCENT COURT, SUITE 600
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201
(214) 922-8700 (214) 922-8700
(Address, including zip code, and telephone number, (Name, address, including zip code, telephone
including area code, of Co-Registrant's principal executive offices) number, including area code, of agent for service)
</TABLE>
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Copies To:
<TABLE>
<S> <C>
MICHAEL A. SASLAW, ESQ. RICHARD A.B. GLEINER, ESQ.
WEIL, GOTSHAL & MANGES LLP SENIOR VICE PRESIDENT AND
100 CRESCENT COURT, SUITE 1300 GENERAL COUNSEL
DALLAS, TEXAS 75201 CHANCELLOR MEDIA CORPORATION
(214) 746-7700 OF LOS ANGELES
300 CRESCENT COURT, SUITE 600
DALLAS, TEXAS 75201
(214) 746-7700
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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. [ ] ------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM OFFERING MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED NOTE OFFERING PRICE(1) FEE(2)
<S> <C> <C> <C> <C>
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9% Senior Subordinated Notes Due
2008.............................. $750,000,000 100% $750,000,000 $208,500.00
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Guarantees of the 9% Senior
Subordinated Notes due 2008(3).... -- -- -- --
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The registration fee has been calculated in accordance with Rule 457(f)
under the Securities Act of 1933, as amended.
(3) The 9% Subordinated Notes due 2008 are guaranteed by the Co-Registrants on a
senior subordinated basis. No separate consideration will be paid in respect
of the guarantees.
THE CO-REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE CO-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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
TABLE OF CO-REGISTRANTS
<TABLE>
<CAPTION>
STATE OR OTHER
JURISDICTION
OF PRIMARY STANDARD IRS
INCORPORATION INDUSTRIAL EMPLOYER
OR CLASSIFICATION IDENTIFICATION
NAME FORMATION CODE NUMBER NUMBER
---- -------------- ---------------- --------------
<S> <C> <C> <C>
Chancellor Media Corporation of the Lone Star State...... Delaware 4832 99-0248294
KZPS/KDGE License Corp. ................................. Delaware 4832 75-2449662
Chancellor Media Corporation of California............... Delaware 4832 59-2312787
KIOI License Corp. ...................................... Delaware 4832 75-2449654
Chancellor Media Corporation of Illinois................. Delaware 4832 75-2490925
Chancellor Media Illinois License Corp. ................. Delaware 4832 75-2528716
Chancellor Media Corporation of Dade County.............. Delaware 4832 59-2312792
WVCG License Corp. ...................................... Delaware 4832 75-2449668
Chancellor Media Corporation of Massachusetts............ Delaware 4832 04-3216274
Chancellor Media Pennsylvania License Corp. ............. Delaware 4832 04-3221375
Chancellor Media Corporation of Miami.................... Delaware 4832 04-3216285
WEDR License Corp. ...................................... Delaware 4832 04-3216278
Chancellor Media Corporation of Houston Limited
Partnership............................................ Delaware 4832 75-2486577
Chancellor Media Corporation of Houston.................. Delaware 4832 75-2486583
Chancellor Media Corporation of the Keystone State....... Delaware 4832 04-3221374
Chancellor Media Corporation of New York................. Delaware 4832 54-1475267
Chancellor Media Corporation of Charlotte................ Delaware 4832 62-1364794
WIOQ License Corp. ...................................... Delaware 4832 36-3906002
Chancellor Media Corporation of Washington, D.C. ........ Delaware 4832 75-2432561
Chancellor Media Corporation of St. Louis................ Delaware 4832 75-2449637
Chancellor Media Corporation of Michigan................. Delaware 4832 75-2666017
Chancellor Media/WAXQ Inc. .............................. Delaware 4832 13-3387794
WAXQ License Corp. ...................................... Delaware 4832 75-2788524
Chancellor Media/KCMG Inc. .............................. Delaware 4832 13-3930133
Chancellor Media/Riverside Broadcasting Co., Inc. ....... Delaware 4832 13-2688382
WLTW License Corp. ...................................... Delaware 4832 75-2788528
Chancellor Media Corporation of the Capital City......... Delaware 4832 75-2647157
Chancellor Media D.C. License Corp. ..................... Delaware 4832 75-2647158
Chancellor Media Licensee Company........................ Delaware 4832 75-2544625
Chancellor Media/Trefoil Communications, Inc. ........... Delaware 4832 95-3278846
Chancellor Media/Shamrock Broadcasting, Inc. ............ Delaware 4832 95-4068583
Chancellor Media/Shamrock Radio Licenses, Inc. .......... Delaware 4832 95-4501833
Chancellor Media/Shamrock Broadcasting Licenses of
Denver, Inc. .......................................... Delaware 4832 75-2688376
Chancellor Media/Shamrock Broadcasting of Texas, Inc. ... Texas 4832 71-0527506
Chancellor Media/Shamrock Radio Licenses, LLC............ Delaware 4832 75-2779594
Chancellor Media Outdoor Corporation..................... Delaware 7319 75-2779605
Chancellor Media Nevada Sign Corporation................. Delaware 7319 75-2788530
Chancellor Media MW Sign Corporation..................... Delaware 7319 75-2779602
Chancellor Media Martin Corporation...................... Delaware 7319 75-2779598
Western Poster Service, Inc. ............................ Texas 7319 75-2084318
The AMFM Radio Networks, Inc. ........................... Delaware 4832 52-2100851
Chancellor Media Air Services Corporation................ Delaware 7319 75-2771440
</TABLE>
<PAGE> 3
TABLE OF CO-REGISTRANTS -- (CONTINUED)
<TABLE>
<CAPTION>
STATE OR OTHER
JURISDICTION
OF PRIMARY STANDARD IRS
INCORPORATION INDUSTRIAL EMPLOYER
OR CLASSIFICATION IDENTIFICATION
NAME FORMATION CODE NUMBER NUMBER
---- -------------- ---------------- --------------
<S> <C> <C> <C>
Chancellor Media Whiteco Outdoor Corporation............. Delaware 7319 75-2783296
Chancellor Merger Corp. ................................. Delaware 7319 75-2771441
Broadcast Architecture, Inc. ............................ Massachusetts 4832 04-3096275
Martin Media............................................. California 7319 77-0058488
Dowling Company Incorporated............................. Virginia 7319 54-0787845
Nevada Outdoor Systems, Inc. ............................ Nevada 7319 88-0267411
MW Sign Corp. ........................................... California 7319 95-4334859
Martin & MacFarlane, Inc. ............................... California 7319 95-2743749
Katz Media Corporation................................... Delaware 7319 13-3779266
Katz Communications, Inc. ............................... Delaware 7319 13-0904500
Katz Millennium Marketing, Inc. ......................... Delaware 7319 13-3894491
Amcast Radio Sales, Inc. ................................ Delaware 7319 13-3406436
Christal Radio Sales, Inc. .............................. Delaware 7319 13-2618663
Eastman Radio Sales, Inc. ............................... Delaware 7319 13-3581043
Seltel Inc. ............................................. Delaware 7319 06-0963166
Katz Cable Corporation................................... Delaware 7319 13-3814104
The National Payroll Company, Inc. ...................... Delaware 7319 13-3744365
Chancellor Media Radio Licenses, LLC..................... Delaware 4832 75-2779589
KLOL License Limited Partnership......................... Delaware 4832 75-2486580
WTOP License Limited Partnership......................... Delaware 4832 75-2528718
Radio 100, L.L.C. ....................................... Delaware 4832 75-2759570
</TABLE>
<PAGE> 4
THIS PROSPECTUS, DATED NOVEMBER 9, 1998, IS SUBJECT TO COMPLETION AND AMENDMENT.
PROSPECTUS
OFFER TO EXCHANGE ALL OUTSTANDING
9% SENIOR SUBORDINATED NOTES DUE 2008
FOR
9% SENIOR SUBORDINATED NOTES DUE 2008
OF
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
We hereby offer, upon the terms and conditions described in this Prospectus, to
exchange all of our outstanding 9% Senior Subordinated Notes due 2008 ("Old
Notes") for our registered 9% Senior Subordinated Notes due 2008 ("New Notes").
The Old Notes and New Notes are sometimes collectively referred to as the
"Notes." The Old Notes were issued on September 25, 1998 and, as of the date of
this Prospectus, an aggregate principal amount of $750.0 million is outstanding.
The terms of the New Notes are identical to the terms of the Old Notes except
that the New Notes are registered under the Securities Act of 1933, as amended,
and will not contain any legends restricting their transfer.
INFORMATION ABOUT THE NOTES:
<TABLE>
<S> <C>
- The Notes will mature on October 1, 2008.
- -----------------------------------------------------
* PLEASE CONSIDER THE FOLLOWING: - We will pay interest on the Notes semi-annually on April 1
and October 1 of each year beginning April 1, 1999, at the
- You should carefully review the Risk Factors rate of 9% per annum.
beginning on page 13 of this Prospectus.
- We have the option to redeem all or a portion of the Notes
- Our offer to exchange Old Notes for New Notes on or after October 1, 2003 at certain rates set forth on
will be open until 5:00 p.m., New York City page 100 of this Prospectus.
time, on December , 1998, unless we extend the
offer. - We also have the option to redeem up to 25% of the original
aggregate principal amount of the Notes on or prior to
- You should also carefully review the procedures October 1, 2000 with the net cash proceeds from a public
for tendering the Old Notes beginning on page 90 equity offering.
of this Prospectus.
- The Notes are unsecured obligations and are of equal ranking
- If you fail to tender your Old Notes, you will in right of payment to our other outstanding senior
continue to hold unregistered securities and subordinated notes. The Notes are subordinated to our senior
your ability to transfer them could be adversely indebtedness. Please be advised that, as of September 30,
affected. 1998, we had $1.3 billion of senior indebtedness and $1.0
billion of indebtedness of equal ranking in right of
- No public market currently exists for the Notes. payment to the Notes.
We do not intend to list the New Notes on any
securities exchange and, therefore, no active - The Notes are fully and unconditionally guaranteed on an
public market is anticipated. unsecured senior subordinated basis by all of our direct
and indirect subsidiaries on the date the Old Notes were
- ----------------------------------------------------- issued (the "Guarantors").
</TABLE>
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------
THE DATE OF THIS PROSPECTUS IS , 1998
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 5
WHERE YOU CAN FIND MORE INFORMATION
We, together with Chancellor Media Corporation ("Chancellor Media"), our
indirect parent corporation, file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission
(the "SEC"). You may read and copy any reports, statements and other information
we file at the SEC's public reference rooms in Washington, D.C., New York, New
York, and Chicago, Illinois. Please call 1-800-SEC-0330 for further information
on the public reference rooms. Our filings are also available to the public from
commercial document retrieval services and at the web site maintained by the SEC
at http://www.sec.gov.
We, together with the Guarantors, have filed a Registration Statement on Form
S-4 to register with the SEC the New Notes to be issued in exchange for the Old
Notes. This Prospectus is part of that Registration Statement. As allowed by the
SEC's rules, this Prospectus does not contain all of the information you can
find in the Registration Statement or the exhibits to the Registration
Statement.
WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS ABOUT THE TRANSACTIONS WE DISCUSS IN THIS PROSPECTUS OTHER THAN
THOSE CONTAINED HEREIN OR IN THE DOCUMENTS WE INCORPORATE HEREIN BY REFERENCE.
IF YOU ARE GIVEN ANY INFORMATION OR REPRESENTATIONS ABOUT THESE MATTERS THAT IS
NOT DISCUSSED OR INCORPORATED IN THIS PROSPECTUS, YOU MUST NOT RELY ON THAT
INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY SECURITIES ANYWHERE OR TO ANYONE WHERE OR TO WHOM WE ARE NOT
PERMITTED TO OFFER OR SELL SECURITIES UNDER APPLICABLE LAW. THE DELIVERY OF THIS
PROSPECTUS OFFERED HEREBY DOES NOT, UNDER ANY CIRCUMSTANCES, MEAN THAT THERE HAS
NOT BEEN A CHANGE IN OUR AFFAIRS SINCE THE DATE HEREOF. IT ALSO DOES NOT MEAN
THAT THE INFORMATION IN THIS PROSPECTUS OR IN THE DOCUMENTS WE INCORPORATE
HEREIN BY REFERENCE IS CORRECT AFTER THIS DATE.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This Prospectus contains certain forward-looking statements about our financial
condition, results of operations and business. These statements may be made
expressly in this document, or may be "incorporated by reference" to other
documents we have filed with the SEC. You can find many of these statements by
looking for words such as "believes," "expects," "anticipates," "estimates," or
similar expressions used in this Prospectus or incorporated herein.
These forward-looking statements are subject to numerous assumptions, risks and
uncertainties. Factors which may cause our actual results, performance or
achievements to be materially different from any future results, performance or
achievements expressed or implied by us in those statements include, among
others, the following:
- - our ability to pay interest and principal on a very large amount of debt;
- - the competitive nature of the radio broadcasting, outdoor advertising and
media representation businesses;
- - our ability to successfully integrate our completed and pending acquisitions;
(i)
<PAGE> 6
- - our ability to successfully compete in our new business platforms, including
outdoor advertising and media representation;
- - changes in governmental regulation of radio broadcasting by the Federal
Communications Commission (the "FCC");
- - increased antitrust scrutiny of the broadcasting industry by the Antitrust
Division of the Department of Justice (the "DOJ") and the Federal Trade
Commission (the "FTC"), including limitations on future acquisition
opportunities and possible radio divestiture requirements; and
- - increased competition from new technologies, including satellite radio
programming and the Internet.
Because such statements are subject to risks and uncertainties, actual results
may differ materially from those expressed or implied by the forward-looking
statements. You are cautioned not to place undue reliance on such statements,
which speak only as of the date of this Prospectus or, in the case of documents
incorporated by reference, the date of such document.
We do not undertake any responsibility to release publicly any revisions to
these forward-looking statements to take into account events or circumstances
that occur after the date of this Prospectus. Additionally, we don't undertake
any responsibility to update you on the occurrence of any unanticipated events
which may cause actual results to differ from those expressed or implied by the
forward-looking statements contained or incorporated by reference in this
Prospectus.
(ii)
<PAGE> 7
PROSPECTUS SUMMARY
This brief summary highlights selected information from the Prospectus. It does
not contain all of the information that is important to you. We urge you to
carefully read and review the entire Prospectus and the other documents to which
it refers to fully understand the terms of the New Notes and the exchange offer.
Chancellor Media Corporation of Los Angeles is sometimes referred to herein as
"CMCLA" and, together with its subsidiaries as the "Company."
THE COMPANY
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
300 Crescent Court, Suite 600
Dallas, Texas 75201
(214) 922-8700
The Company, an indirect wholly-owned subsidiary of Chancellor Media, is a
diversified multi-media company that (i) owns and/or operates a radio station
portfolio consisting of 116 radio stations (including 10 stations currently
operated under time brokerage agreements) in 22 of the largest U.S. markets and
Puerto Rico, (ii) provides national media sales representation through Katz
Media Group, Inc., a wholly-owned subsidiary, and (iii) has a significant and
growing outdoor (billboard) advertising presence. After completing all of our
announced transactions, we will own or operate 123 radio stations in 25 markets
and over 36,000 outdoor advertising displays in 37 states.
On a pro forma basis, after giving effect to the transactions described in the
"Pro Forma Financial Information" beginning on page P-1, we would have had net
revenue of $705.7 million and broadcast cash flow of $314.3 million for the six
months ended June 30, 1998. Also, our pro forma broadcast cash flow margin for
the same period would have been 45%, and approximately 65% of pro forma net
revenue for the period would have been generated in markets where we own
superduopolies. Furthermore, we would have generated approximately 74% of our
net revenue from radio operations, approximately 11% from our media
representation operations and approximately 15% from our outdoor advertising
operations.
BUSINESS STRATEGY
Our strategy is to create a leading multi-media company with an overlapping
presence in radio and outdoor advertising markets. To this end, we have built a
diversified portfolio of media assets which allows us to present more options
and greater value to our advertising clients. We believe that the multi-media
platform creates significant growth opportunities through cross-selling,
cross-promotion and cross-savings in markets where our radio and advertising
operations overlap.
Radio Broadcast Strategy. The business strategy of our radio group is to
assemble and operate radio station clusters in order to maximize the broadcast
cash flow generated in each market. We believe that radio station clusters
attract increased revenues in a particular market by delivering larger combined
audiences to advertisers and by engaging in joint marketing and promotional
activities.
1
<PAGE> 8
Media Representation Strategy. The business strategy of our media representation
business is to create a leading national representation firm serving all types
of electronic media. We believe we can continue to generate revenue and cash
flow growth in the media representation business by expanding our market share
and improving our national sales effort.
Outdoor Advertising Strategy. The business strategy of our outdoor advertising
group is to create and develop one of the leading outdoor advertising companies
in the country through acquisitions that complement our existing outdoor and
radio markets. We will focus on strengthening our operating results by
increasing market penetration, maximizing rates and occupancy levels in each of
our markets and capitalizing on technological advancements to improve quality
and reduce costs.
RECENT DEVELOPMENTS
Completed Transactions. Since January 1, 1997, we have completed a number of
transactions. Through these various transactions, we have:
- - added 72 radio stations to our portfolio;
- - acquired a full service media representation firm; and
- - entered into the outdoor advertising business by acquiring approximately
14,850 billboards.
Pending Transactions. We also currently have a number of significant pending
transactions.
- - On July 31, 1997, the outdoor advertising company we acquired in July 1998
paid a deposit for an option to purchase approximately 1,000 billboards from
Kunz & Company.
- - On February 20, 1998, we entered into an agreement with Capstar Broadcasting
Corporation to acquire certain of its stations through a series of purchases
and exchanges over a period of three years.
- - On April 8, 1998, we entered into an agreement to acquire Petry Media
Corporation, a leading independent television representation firm. We are
currently negotiating with the DOJ about their antitrust review of this
transaction. Accordingly, we cannot be sure the transaction will be completed
on its terms or at all.
- - On August 11, 1998, we entered into agreements to acquire four FM and two AM
stations in Cleveland.
- - On August 20, 1998, we entered into an agreement to sell WMVP-AM in Chicago to
ABC, Inc.
- - On August 31, 1998, we entered into an agreement to acquire the assets of the
Outdoor Advertising division of Whiteco Industries, Inc.
2
<PAGE> 9
- - On September 3, 1998, we entered into an agreement to acquire Pegasus
Broadcasting of San Juan, L.L.C., a television broadcasting company which owns
a television station in Puerto Rico.
- - On September 15, 1998, we entered into an agreement to acquire KKFR-FM and
KFYI-AM in Phoenix from The Radio Broadcast Group, Inc.
For a more detailed explanation of the terms of the foregoing pending
transactions, we advise you to review "Business -- Recent
Developments -- Pending Transactions of CMCLA," beginning on page 41.
Pending Transactions of Chancellor Media Corporation. Chancellor Media, our
indirect parent corporation, has also recently entered into some significant
transactions.
- - On July 7, 1998, Chancellor Media entered into an agreement by which the
ultimate parent corporation of LIN Television Corporation will merge into
Chancellor Media. Upon consummation of the merger, it is expected that LIN
will own or operate 12 television stations in eight markets in the United
States.
- - On August 26, 1998, Chancellor Media and Capstar Broadcasting Corporation
entered into an agreement to merge in a stock-for-stock transaction that will
create the nation's largest radio broadcasting entity.
For a more detailed explanation of the terms of the foregoing pending
transactions of Chancellor Media, we advise you to review "Business -- Recent
Developments -- Pending Transactions of Chancellor Media," beginning on page 42.
3
<PAGE> 10
THE EXCHANGE OFFER
SECURITIES TO BE EXCHANGED... On September 25, 1998, we issued $750.0 million
aggregate principal amount of Old Notes to the
initial purchaser (the "Original Offering") in a
transaction exempt from the registration
requirements of the Securities Act of 1933, as
amended (the "Securities Act"). The terms of the
New Notes and the Old Notes are substantially
identical in all material respects, except that
the New Notes will be freely transferable by the
holders thereof except as otherwise provided
herein. See "Description of New Notes."
THE EXCHANGE OFFER........... $1,000 principal amount of New Notes in exchange
for each $1,000 principal amount of Old Notes.
As of the date hereof, Old Notes representing
$750.0 million aggregate principal amount are
outstanding.
Based on interpretations by the staff of the
SEC, as set forth in no-action letters issued to
certain third parties unrelated to us, we,
together with the Guarantors believe that New
Notes issued pursuant to the exchange offer in
exchange for Old Notes may be offered for
resale, resold or otherwise transferred by
holders thereof (other than any holder which is
an "affiliate" of the Company or the Guarantors
within the meaning of Rule 405 promulgated under
the Securities Act, or a broker-dealer who
purchased Old Notes directly from us to resell
pursuant to Rule 144A or any other available
exemption promulgated under the Securities Act),
without compliance with the registration and
prospectus delivery requirements of the
Securities Act, provided that such New Notes are
acquired in the ordinary course of such holders'
business and such holders have no arrangement
with any person to engage in a distribution of
New Notes.
However, the SEC has not considered the exchange
offer in the context of a no-action letter and
we cannot be sure that the staff of the SEC
would make a similar determination with respect
to the exchange offer as in such other
circumstances. Furthermore, each holder, other
than a broker-dealer, must acknowledge that it
is not engaged in, and does not intend to engage
in, a distribution of such New Notes and has no
arrangement or understanding to participate in a
distribution of New Notes. Each broker-dealer
that receives New Notes for its own account
pursuant to the exchange offer must acknowledge
that it will comply with the prospectus delivery
requirements of the Securities Act in connec-
4
<PAGE> 11
tion with any resale of such New Notes.
Broker-dealers who acquired Old Notes directly
from us and not as a result of market-making
activities or other trading activities may not
rely on the staff's interpretations discussed
above or participate in the exchange offer and
must comply with the prospectus delivery
requirements of the Securities Act in order to
resell the Old Notes.
REGISTRATION RIGHTS
AGREEMENT.................. We sold the Old Notes on September 25, 1998, in
a private placement in reliance on Section 4(2)
of the Securities Act. The Old Notes were
immediately resold by the initial purchaser in
reliance on Rule 144A promulgated under the
Securities Act. In connection with the sale, we,
together with the Guarantors, entered into a
Registration Rights Agreement with the initial
purchaser (the "Registration Rights Agreement")
requiring us to make the exchange offer. The
Registration Rights Agreement further provides
that we, together with the Guarantors, must use
our reasonable best efforts to (i) cause the
Registration Statement with respect to the
exchange offer to be declared effective within
180 days of the date on which we issued the Old
Notes and (ii) consummate the exchange offer on
or before the 225th business day following the
date on which we issued the Old Notes. See "The
Exchange Offer -- Purpose and Effect."
EXPIRATION DATE.............. The exchange offer will expire at 5:00 p.m., New
York City time, December , 1998 or such later
date and time to which it is extended.
WITHDRAWAL................... The tender of the Old Notes pursuant to the
exchange offer may be withdrawn at any time
prior to 5:00 p.m., New York City time, on
December , 1998, or such later date and time
to which we extend the offer. Any Old Notes not
accepted for exchange for any reason will be
returned without expense to the tendering holder
thereof as soon as practicable after the
expiration or termination of the exchange offer.
INTEREST ON THE NEW NOTES AND
THE OLD NOTES.............. Interest on the New Notes will accrue from the
date of the original issuance of the Old Notes
or from the date of the last periodic payment of
interest on the Old Notes, whichever is later.
No additional interest will be paid on Old Notes
tendered and accepted for exchange.
5
<PAGE> 12
CONDITIONS TO THE EXCHANGE
OFFER...................... The exchange offer is subject to certain
customary conditions, certain of which may be
waived by us. See "The Exchange Offer -- Certain
Conditions to Exchange Offer."
PROCEDURES FOR TENDERING OLD
NOTES...................... Each holder of the Old Notes wishing to accept
the exchange offer must complete, sign and date
the letter of transmittal, or a copy thereof, in
accordance with the instructions contained
herein and therein, and mail or otherwise
deliver the letter of transmittal, or the copy,
together with the Old Notes and any other
required documentation, to the exchange agent at
the address set forth herein. Persons holding
the Old Notes through the Depository Trust
Company ("DTC") and wishing to accept the
exchange offer must do so pursuant to the DTC's
Automated Tender Offer Program, by which each
tendering participant will agree to be bound by
the letter of transmittal. By executing or
agreeing to be bound by the letter of
transmittal, each holder will represent to us
and the Guarantors that, among other things, (i)
the New Notes acquired pursuant to the exchange
offer are being obtained in the ordinary course
of business of the person receiving such New
Notes, whether or not such person is the
registered holder of the Old Notes, (ii) the
holder is not engaging in and does not intend to
engage in a distribution of such New Notes,
(iii) the holder does not have an arrangement or
understanding with any person to participate in
the distribution of such New Notes, and (iv) the
holder is not an "affiliate," as defined under
Rule 405 promulgated under the Securities Act,
of the Company or the Guarantors.
Pursuant to the Registration Rights Agreement if
(i) we determine that we are not permitted to
effect the exchange offer as contemplated hereby
because of any change in applicable law or SEC
policy, or (ii) any holder of Transfer
Restricted Securities (as defined on page 90)
notifies us prior to the 20th day following
consummation of the exchange offer (a) that it
is prohibited by law or SEC policy from
participating in the exchange offer, (b) that it
may not resell the New Notes acquired by it in
the exchange offer to the public without
delivering a prospectus and that this Prospectus
is not appropriate or available for such resales
or (c) that it is a broker-dealer and owns Old
Notes acquired directly from us or an affiliate
of ours, we are
6
<PAGE> 13
required to file a "shelf" registration
statement for a continuous offering pursuant to
Rule 415 under the Securities Act in respect of
the Old Notes.
We will accept for exchange any and all Old
Notes which are properly tendered (and not
withdrawn) in the exchange offer prior to 5:00
p.m., New York City time, on December , 1998.
The New Notes issued pursuant to the exchange
offer will be delivered promptly following the
expiration date. See "The Exchange
Offer -- Terms of the Exchange Offer."
EXCHANGE AGENT............... The Bank of New York is serving as Exchange
Agent (the "Exchange Agent") in connection with
the exchange offer.
FEDERAL INCOME TAX
CONSIDERATIONS............. The exchange of Old Notes for New Notes pursuant
to the exchange offer should not constitute a
sale or an exchange for federal income tax
purposes. See "Certain Federal Income Tax
Considerations."
EFFECT OF NOT TENDERING...... Old Notes that are not tendered or that are
tendered but not accepted will, following the
completion of the exchange offer, continue to be
subject to the existing restrictions upon
transfer thereof. We will have no further
obligation to provide for the registration under
the Securities Act of such Old Notes.
7
<PAGE> 14
THE NEW NOTES
Issuer....................... Chancellor Media Corporation of Los Angeles.
Securities Offered........... $750.0 million aggregate principal amount of 9%
Senior Subordinated Notes due 2008.
Maturity Date................ October 1, 2008.
Interest..................... The New Notes will bear interest at a rate of 9%
per annum. Interest on the New Notes will accrue
from the date of issuance and will be payable
semi-annually on each April 1 and October 1,
commencing April 1, 1999.
Sinking Fund................. None.
Optional Redemption.......... The New Notes will be redeemable, in whole or in
part, at our option on or after October 1, 2003
at the redemption prices set forth herein, plus
accrued and unpaid interest to the date of
redemption. In addition, on or prior to October
1, 2000, we may, at our option, redeem the New
Notes, in part, with the net cash proceeds of
one or more Public Equity Offerings (as defined
on page 125), at the redemption price set forth
herein, plus accrued and unpaid interest, if
any, to the date of redemption; provided,
however, that after any such redemption the
aggregate principal amount of New Notes
outstanding must equal at least 75% of the
aggregate principal amount of Old Notes
originally issued on September 25, 1998. See
"Description of New Notes -- Optional
Redemption."
Change of Control............ If a Change of Control (as defined on page 118)
occurs, (i) we will have the option, at any time
on or prior to October 1, 2000, to redeem the
New Notes in whole but not in part at a
redemption price equal to 100% of the principal
amount thereof plus the Applicable Premium, plus
accrued and unpaid interest, if any, to the date
of redemption, and (ii) if we do not so redeem
the Exchange Notes or if such Change of Control
occurs after October 1, 2000, we will be
required to offer to repurchase all outstanding
New Notes at a price equal to 101% of their
principal amount, plus accrued and unpaid
interest, if any, to the date of repurchase.
There can be no assurance that we will have
sufficient funds to purchase all the New Notes
in the event of a Change of Control or that we
would be able to obtain financing for such
purpose on favorable terms, if at all. In
addition, our senior loan agreement restricts
our ability to repurchase the New Notes,
including pursuant to a Change of Control Offer
(as defined on page 101). The
8
<PAGE> 15
senior loan agreement also contains certain
other provisions relating to a change of control
of the Company. These provisions are generally
broader than the Change of Control provisions of
the indenture governing the Notes (the
"Indenture"). Consequently, certain events that
may give rise to a change of control under the
senior loan agreement may not give rise to a
Change of Control under the Indenture. See "Risk
Factors -- Change of Control," "Description of
New Notes -- Change of Control" and "Description
of Certain Indebtedness -- Senior Credit
Facility -- Events of Default."
Guarantees................... The New Notes will be fully and unconditionally
guaranteed (the "Guarantees") on a senior
subordinated basis by the Guarantors. The
obligation of the Guarantors with respect to the
Guarantees will be subordinated in right of
payment, to the same extent as the obligations
of the Company in respect of the New Notes are
subordinated to all existing and future senior
indebtedness, to all existing and future
Guarantor senior indebtedness (which includes
the guarantee by the Guarantors of the Company's
borrowings under the senior loan agreement), and
will be of equal ranking in right of payment to
the Guarantors' guarantees of our other senior
subordinated notes. See "Description of New
Notes -- Guarantees."
Offers to Purchase........... In the event of certain asset sales, we will be
required to offer to repurchase the New Notes
(to the extent of any net proceeds remaining
following our offer to purchase our other senior
subordinated notes) at a price equal to 100% of
their principal amount, plus accrued and unpaid
interest, if any, to the date of repurchase. See
"Description of New Notes -- Certain
Covenants -- Limitation on Asset Sales."
Ranking...................... The New Notes will be our general unsecured
obligations and will be of equal ranking
in right of payment to our other senior
subordinated notes and will be subordinated in
right of payment to all existing and future
senior indebtedness. As of June 30, 1998, on a
pro forma basis after giving effect to the
transactions described in the "Pro Forma
Financial Information" beginning on page P-1,
approximately $3.1 billion of senior
indebtedness (represented by borrowings under
the senior loan agreement and amounts
potentially available under a new, expanded
credit facility) would have been outstanding and
approximately $1.0 billion of debt of equal
ranking in right of payment to the New
9
<PAGE> 16
Notes would have been outstanding. See
"Description of New Notes -- Subordination."
Restrictive Covenants........ The Indenture will impose certain limitations on
our ability and the ability of our subsidiaries
to, among other things, incur additional
indebtedness, incur liens, pay dividends or make
certain other restricted payments, consummate
certain asset sales, enter into certain
transactions with affiliates, engage in certain
asset swaps, incur indebtedness that is
subordinate in right of payment to any senior
indebtedness and senior in right of payment to
the New Notes, impose restrictions on the
ability of a subsidiary to pay dividends or make
certain payments to us, enter into sale and
leaseback transactions, conduct business other
than the ownership and operation of radio
broadcast stations, merge or consolidate with
any other person or sell, assign, transfer,
lease, convey or otherwise dispose of all or
substantially all of our assets. See
"Description of New Notes -- Certain Covenants."
Use of Proceeds.............. The Company will not receive any cash proceeds
from the issuance of the New Notes pursuant to
this Prospectus.
RISK FACTORS
We urge you to carefully review the Risk Factors beginning on page 13 for a
discussion of factors you should consider before exchanging your Old Notes for
New Notes.
10
<PAGE> 17
SUMMARY PRO FORMA FINANCIAL INFORMATION
We have summarized below the unaudited combined pro forma financial information
of the Company for the year ended December 31, 1997 and for the six months ended
June 30, 1998. The information should be read in conjunction with the unaudited
pro forma condensed financial statements included on Pages P-1 through P-25 of
this Prospectus and in conjunction with our historical financial statements and
related notes included on Pages F-1 through F-138 of this Prospectus.
You should be aware that this pro forma information may not be indicative of
what actual results will be in the future or would have been for the periods
presented.
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, 1997 JUNE 30, 1998
-------------------------------------- -------------------------------------
COMPANY AS COMPANY AS
ADJUSTED FOR ADJUSTED FOR
THE THE
COMPANY COMPLETED COMPANY COMPANY COMPLETED COMPANY
HISTORICAL TRANSACTIONS PRO FORMA HISTORICAL TRANSACTIONS PRO FORMA
---------- ------------ ---------- ---------- ------------ ---------
(IN THOUSANDS EXCEPT MARGIN DATA)
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Net revenues........................ $582,078 $1,108,985 $1,308,652 $ 555,267 $ 609,323 $ 705,681
Operating expenses excluding
depreciation and amortization..... 316,248 624,519 733,677 316,862 341,463 391,416
Operating income (loss)............. 58,406 28,243 (5,049) (29,209) (26,531) (42,242)
Interest expense, net............... 83,095 250,971 368,328 87,085 121,277 180,167
Net loss............................ (18,844) (140,184) (226,998) (116,402) (87,285) (131,219)
Preferred stock dividends........... 12,901 -- -- 16,702 -- --
Net loss attributable to common
stock............................. (31,745) (140,184) (226,998) (133,104) (87,285) (131,219)
OTHER DATA:
Broadcast cash flow(1).............. $265,830 $ 484,466 $ 574,975 $ 238,405 $ 267,860 $ 314,265
Broadcast cash flow margin.......... 46% 44% 44% 43% 44% 45%
EBITDA(1)........................... $244,388 $ 447,548 $ 531,502 $ 223,326 $ 252,004 $ 294,654
Ratio of earnings to fixed
charges(2)........................ -- -- -- -- -- --
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, 1998
-----------------------------------------
COMPANY
AS ADJUSTED
FOR THE
COMPANY COMPLETED COMPANY
HISTORICAL TRANSACTIONS PRO FORMA
---------- ------------ ----------
(IN THOUSANDS EXCEPT MARGIN DATA)
<S> <C> <C> <C>
BALANCE SHEET DATA (END OF PERIOD):
Working capital............................................. $ 176,775 $ 183,324 $ 205,643
Intangible assets, net...................................... 4,503,891 5,097,535 6,872,327
Total assets................................................ 5,281,596 6,087,504 7,829,541
Long-term debt.............................................. 2,278,000 3,161,015 4,844,873
Redeemable preferred stock.................................. 119,445 -- --
Stockholder's equity........................................ 2,349,356 2,334,132 2,343,679
</TABLE>
11
<PAGE> 18
- -------------------------
(1) Broadcast cash flow consists of operating income excluding depreciation,
amortization, corporate general and administrative expense, and other
non-cash and non-recurring charges. EBITDA consists of operating income
before depreciation and amortization, and other non-cash and non-recurring
charges. Although broadcast cash flow and EBITDA are not calculated in
accordance with generally accepted accounting principles, the Company
believes that broadcast cash flow and EBITDA are widely used as a measure of
operating performance. Nevertheless, these measures should not be considered
in isolation or as a substitute for operating income, cash flows from
operating activities or any other measure for determining the Company's
operating performance or liquidity that is calculated in accordance with
generally accepted accounting principles. Broadcast cash flow and EBITDA do
not take into account the Company's debt service requirements and other
commitments and, accordingly, broadcast cash flow and EBITDA are not
necessarily indicative of amounts that may be available for reinvestment in
the Company's business or other discretionary uses.
(2) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs and the component of rental expense
believed by management to be representative of the interest factor thereon.
Earnings were insufficient to cover fixed charges by $6,692 and $101,465 for
the year ended December 31, 1997 and the six months ended June 30, 1998,
respectively. On a pro forma basis after giving effect to the Completed
Transactions, financing transactions undertaken by the Company and
Chancellor Radio Broadcasting Company ("CRBC") during 1997 and the 1998
Financing Transactions (as defined on page 44), earnings were insufficient
to cover fixed charges by $207,207 and $133,246 for the year ended December
31, 1997 and the six months ended June 30, 1998, respectively. On a pro
forma basis after giving effect to the transactions described in "Pro Forma
Financial Information" beginning on page P-1, earnings were insufficient to
cover fixed charges by $354,666 and $207,885 for the year ended December 31,
1997 and the six months ended June 30, 1998, respectively.
12
<PAGE> 19
RISK FACTORS
In addition to the other information set forth in this Prospectus, you should
carefully consider the following information about our business before
exchanging your Old Notes for New Notes.
SUBSTANTIAL INDEBTEDNESS OF THE COMPANY
We have a large amount of consolidated indebtedness when compared to the equity
of our stockholders. We are subject to the terms of a senior loan agreement and
various indentures relating to our outstanding senior subordinated notes. The
terms of the senior loan agreement and the various indentures limit, but do not
prohibit, the incurrence of additional indebtedness by us. Please be aware of
the following:
- - As of June 30, 1998, we had outstanding long-term indebtedness of
approximately $2.3 billion, an accumulated deficit of $232.4 million and
stockholder's equity of $2.3 billion.
- - As of June 30, 1998, on a pro forma basis after giving effect to the
transactions described in the "Pro Forma Financial Information" beginning on
page P-1, we would have had outstanding long-term debt of approximately $4.8
billion, an accumulated deficit of $238.1 million and stockholder's equity of
$2.3 billion. See "Pro Forma Financial Information" and "Capitalization."
- - In addition to the long-term indebtedness referred to above, we expect to
finance the acquisition of Petry Media Corporation (the "Petry Acquisition")
and the acquisition of Pegasus Broadcasting of San Juan, L.L.C. (the "Pegasus
Acquisition") through the incurrence of up to approximately $219.6 million in
additional long-term indebtedness.
Such a large amount of indebtedness could have negative consequences for us,
including without limitation, the following:
- - our ability to obtain financing in the future could be limited;
- - much of our cash flow will be dedicated to interest obligations and
unavailable for other purposes;
- - the high level of indebtedness limits our flexibility to deal with changing
economic, business and competitive conditions;
- - some of our borrowings are at variable rates of interest which makes us
vulnerable to increases in interest rates; and
- - certain of our agreements have many restrictive operating and financial
covenants with which we must comply.
Our failure to comply with the covenants could be an event of default and could
accelerate our payment obligations and, in some cases, could affect other
obligations with cross-default or cross-acceleration provisions.
Our ability to satisfy our payment obligations will depend, in large part, on
our performance. Our performance will ultimately be affected by general economic
and business factors, many of which will be outside of our control. We believe
that our cash
13
<PAGE> 20
flow combined with borrowings under our senior loan agreement will be enough to
meet our expenses and interest obligations. However, if we cannot satisfy our
payment obligations, we will be forced to find alternative sources of funds by
selling assets, restructuring, refinancing debt or seeking additional equity
capital. There can be no assurance that any of these alternative sources would
be available on satisfactory terms or at all.
RESTRICTIONS IMPOSED ON THE COMPANY BY AGREEMENTS GOVERNING DEBT INSTRUMENTS
Our senior loan agreement and the various indentures relating to our outstanding
senior subordinated notes contain certain covenants that restrict (or will
restrict), among other things, our ability to incur additional debt, incur
liens, pay dividends or make certain types of payments, sell certain assets,
enter into certain transactions with affiliates, enter into sale and leaseback
transactions, conduct businesses other than the ownership and operation of radio
and television broadcast stations and businesses related thereto, merge or
consolidate with any other person or dispose of all or substantially all of our
assets. Also, our senior loan agreement requires us to maintain certain
financial ratios and satisfy financial condition tests. Our ability to comply
with the ratios and the tests will be affected by events outside of our control
and there can be no assurance that we will meet those tests. A breach of any of
the covenants or failure to meet the tests could result in an event of default
which would allow the lenders to declare all amounts outstanding immediately due
and payable. In the case of our senior loan agreement, if we were unable to pay
the amounts due, the lenders could, subject to compliance with applicable FCC
rules, proceed against the collateral securing the indebtedness. If the amounts
outstanding under the loan agreement were accelerated, there can be no assurance
that our assets would be sufficient to repay the amount in full.
HISTORY OF NET LOSSES AND INSUFFICIENCY OF EARNINGS TO COVER FIXED CHARGES
In the past, we have experienced net losses as a result of significant interest
charges, non-recurring expenses and amortization charges relating to
acquisitions. Our net loss attributable to common stock for the years ended
December 31, 1995, 1996 and 1997 and the six months ended June 30, 1998 was $5.9
million, $16.2 million, $31.7 million and $133.1 million, respectively. On a pro
forma basis, after giving effect to the Completed Transactions (as defined on
page 36), financing transactions undertaken by the Company and CRBC during 1997,
the 1998 Financing Transactions and the Pending Transactions (as defined on page
42) (excluding the Petry Acquisition and the Pegasus Acquisition), the net loss
attributable to common stock for the year ended December 31, 1997 and the six
months ended June 30, 1998 would have been $227.0 million and $131.2 million,
respectively. Since acquisitions are a central focus of our operating strategy,
we expect the charges and expenses to have a negative impact on our results.
DIFFICULTY OF INTEGRATING ACQUISITIONS AND ENTERING NEW LINES OF BUSINESS
We have recently acquired or are in the process of acquiring a number of
entities in various lines of business. Consequently, management's focus will be
on integrating many
14
<PAGE> 21
new acquisitions, learning new industries and conducting its operations on a
much larger scale. For the immediate future, management's focus will be on the
following:
- - Outdoor Advertising. Through our recent acquisition of Martin Media and the
pending acquisition of the Outdoor Advertising division of Whiteco Industries,
Inc. (the "Whiteco Acquisition"), we have entered into billboard and other
outdoor advertising. Although management believes this new business is
complementary to the broadcasting business, management will be operating a
business not previously undertaken by it as well as integrating new employees.
- - Media Representation. Through our recent acquisition of Katz Media Group, Inc.
and our pending acquisition of Petry Media Corporation, we will expand our
media representation operations. Although management has experience in this
line of business at the local level, it must focus on operating the business
and managing personnel on a national level.
- - New National Radio Network. Through The AMFM Radio Networks, we are operating
a new national radio network. Some of our stations have syndicated programs
created locally in the past, but we have never undertaken a radio network at a
national level. Management will focus on competing with other established
state and national radio networks in this regard.
We intend to continue to consider strategic acquisitions to expand or complement
our current businesses. The need for management to focus on acquisitions and the
integration of new businesses could divert the attention of management from
other general business concerns. We cannot be sure that management will be
successful in integrating acquisitions or new lines of business with its
existing businesses.
Our acquisition strategy involves other risks, including without limitation,
increasing our debt payment obligations and the potential loss of valuable
employees. The availability of additional financing cannot be assured and,
depending on the terms of the potential acquisitions, may be restricted by the
terms of our senior loan agreement and the various indentures relating to our
outstanding senior subordinated notes. There can be no assurance that any future
acquisitions will not have a material adverse effect on our financial condition
and results of operations.
COMPETITIVE NATURE OF RADIO BROADCASTING, OUTDOOR ADVERTISING AND MEDIA
REPRESENTATION
The radio broadcasting industry is very competitive. The success of each of our
stations is dependent, in large part, upon its audience rating and our share of
advertising revenue within each market. Our stations compete with other radio
stations in each market, as well as with other media. We also compete with other
companies for acquisition opportunities, and prices for stations have increased
dramatically in recent periods. Some of the other broadcasting companies may
have greater access to capital resources than we do. Also, if the trend towards
consolidation in the radio industry continues, certain competitors may emerge
with more stations and the ability to deliver larger audiences to potential
advertisers. Our audience ratings and market share are and will be subject to
change, and any adverse change in a particular market could have a material
adverse effect on the revenue of the stations located in that market. There can
be no assurance that any one of
15
<PAGE> 22
our radio stations will be able to maintain or increase its current audience
ratings or advertising market share.
Each of the radio broadcasting, outdoor advertising and media representation
industries are subject to competition from a variety of sources.
Radio Broadcasting Competition. The radio broadcasting industry is subject to
competition from new media technologies that are being developed and introduced
such as the following:
- - The delivery of audio programming by cable television systems, direct
broadcasting satellite ("DBS") systems and other digital audio broadcasting
formats to local and national audiences.
- - The FCC has auctioned spectrum for a new satellite-delivered Digital Audio
Radio Service ("DARS"). These actions may result in the introduction of
several new satellite radio services with sound quality equivalent to compact
discs.
- - The introduction of In Band On Channel ("IBOC") digital radio. IBOC could
provide multi-channel, multi-format digital radio services in the same band
width currently occupied by traditional AM and FM radio services.
Outdoor Advertising Competition. Our outdoor advertising business faces
competition from various advertising companies and other media such as the
following:
- - radio and television advertising;
- - print media;
- - direct mail marketing; and
- - other "out-of-home" advertising media, which includes displays in shopping
malls, supermarkets, airports, sports stadia and arenas, movie theaters, and
on taxis, buses, subways and other forms of public transportation.
Media Representation Competition. The success of our media representation
operations depends on our ability to maintain and acquire representation
contracts with radio and television stations and cable systems, the inventory of
time it represents and the experience of our management and personnel. We
compete to gain client stations with other independent and network media
representatives and direct national advertising. We then compete to sell air
time to advertisers with the following:
- - newspapers;
- - magazines;
- - outdoor advertising;
- - transit advertising;
- - yellow page directories; and
- - point of sale advertising.
POTENTIAL DELAY IN CONSUMMATION OF PENDING TRANSACTIONS DUE TO ANTITRUST REVIEW
As a result of the concentration of ownership in the radio broadcast industry,
the DOJ has been looking closely at acquisitions in the industry, including
certain of our transactions. The consummation of each of our pending
transactions is, and any of the future
16
<PAGE> 23
transactions contemplated by us will likely be, subject to the notification
filing requirements, applicable waiting periods and possible review by the DOJ
or the FTC under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"HSR Act"). DOJ review of certain transactions has caused, and may continue to
cause, delays in anticipated closings of certain transactions and, in some
cases, may result in attempts by the DOJ to enjoin such transactions or
negotiate modifications to the proposed terms. Such delays, injunctions or
modifications could have a negative effect on us and result in the abandonment
of some otherwise attractive opportunities.
The DOJ has stated publicly that it will look at some radio station acquisitions
more closely when they exceed established benchmarks. However, to date, the DOJ
has investigated transactions falling below the benchmarks and has cleared
transactions exceeding the benchmarks. Although we do not believe that our
acquisition strategy as a whole will be negatively affected in any material way
by antitrust review or by additional divestitures we may have to make as a
result of such review, there can be no assurance that this will be the case.
We have been dealing with the DOJ on the following two pending acquisitions:
- - Petry Acquisition. On June 3, 1998, the DOJ issued a second request for
additional information under the HSR Act to which we have responded. The
Company and Petry are still negotiating with the DOJ regarding this
transaction and have agreed to extend the waiting period under the HSR Act
pending completion of these discussions. Accordingly, at this time, we cannot
be sure of the terms on which this transaction will be completed, if at all.
- - Whiteco Acquisition. The DOJ has requested that we voluntarily submit
additional information in connection with their review of the Whiteco
Acquisition (as defined on page 42). The Company and Whiteco have complied
with the request and are currently in discussions with the DOJ regarding the
terms on which this transaction may be completed.
LICENSING AND OWNERSHIP ISSUES RELATING TO FEDERAL REGULATION OF THE RADIO
BROADCASTING INDUSTRY
Licenses. The radio broadcasting industry is subject to extensive regulation by
the FCC under the Communications Act of 1934, as amended (the "Communications
Act"). Approval of the FCC is required for the issuance, renewal or transfer of
radio broadcast station operating licenses, including licenses involved in many
of our Pending Transactions. Our business is dependent upon its ability to hold
radio broadcasting licenses from the FCC that are issued for terms of up to
eight years. FCC regulation of licenses presents the following issues for us:
- - There can be no assurance that any of the stations' licenses will be renewed
at their expiration dates; and
- - if granted, the licenses may include conditions and qualifications that could
adversely affect our operations.
Moreover, the laws, policies and regulations of the FCC may change significantly
over time and we cannot be sure whether those changes will have a negative
effect on our business.
17
<PAGE> 24
Ownership. The Communications Act and the FCC rules impose specific limits on
the number of stations an entity can own in a single market. Compliance with the
FCC's ownership rules is expected to cause us, as well as other companies, to
pass on certain acquisition opportunities we might otherwise pursue. Compliance
with these rules by third parties may also have an impact on us as, for example,
in precluding the consummation of swap transactions that would cause third
parties to violate the ownership rules. The ownership rules are as follows:
- - In markets with 45 or more stations, ownership is limited to eight stations,
no more than five of which can be AM or FM;
- - in markets with 30 to 44 stations, ownership is limited to seven stations, no
more than four of which can be AM or FM;
- - in markets with 15 to 29 stations, ownership is limited to six stations, no
more than four of which can be AM or FM; and
- - in markets with 14 or fewer stations, ownership is limited to no more than 50%
of the market's total and no more than three AM or FM stations.
In addition to our radio broadcast and, upon the closing the merger of the
indirect parent corporation of LIN Television Corporation with and into
Chancellor Media (the "LIN Merger"), LIN's television broadcast interests, the
ownership interests of certain of our directors may be attributed to us. For
example, Capstar, which Chancellor Media has agreed to acquire (the "Capstar
Merger") and whose directors include three of our directors (Thomas O. Hicks,
Lawrence D. Stuart, Jr. and Michael J. Levitt), presently owns or proposes to
acquire over 355 stations serving 83 mid-sized markets throughout the United
States. Because of those directors' positions on the Capstar board of directors,
if any such broadcast interests overlap with our directly-held radio broadcast
interests in our markets, such interests are combined with our interests in
those markets when determining whether we comply with the ownership rules. In
addition, Hicks, Muse, Tate & Furst, Incorporated ("Hicks Muse") and four of our
directors (Thomas O. Hicks, Lawrence D. Stuart, Jr., Michael J. Levitt and John
H. Massey) also have attributable interests in Sunrise Broadcasting, Inc.
("Sunrise"), which owns or proposes to acquire a number of television stations
in several markets. Under the FCC's one-to-a-market rules, a party may not have
attributable interests in more than one television station or radio stations and
a television station in the same market unless a waiver is granted by the FCC.
As a result of these attributable interests, our future acquisition strategy may
be negatively affected. There can be no assurance that these additional
attributable interests will not have a negative effect on our future acquisition
strategy or on our business, financial condition and results of operations.
Finally, the FCC has recently issued public notices suggesting that it may
examine and impose limits upon the advertising revenue share acquired by one
entity in a single market. It is not clear how the FCC will proceed in this area
or how any policy it may adopt will interact with the review of similar issues
by the DOJ or the FTC.
POTENTIAL LOSS OF ADVERTISING SPACE TO REGULATION OF OUTDOOR ADVERTISING
Outdoor advertising displays are subject to regulation at the federal, state and
local levels. These regulations, in some cases, limit the height, size, location
and operation of billboards and, in limited circumstances, regulate the content
of the advertising copy displayed on the
18
<PAGE> 25
billboards. Some governmental regulations prohibit the construction of new
billboards or the replacement, relocation, enlargement or upgrading of existing
structures. Some cities have adopted amortization ordinances under which, after
the expiration of a certain period of time, billboards must be removed at the
owner's expense and without the payment of consideration. Ordinances requiring
the removal of billboards without compensation, whether through amortization or
otherwise, are being challenged in various state and federal courts with
conflicting results.
We believe that our operations will not be materially affected by the
amortization ordinances even if they are enforced. A large number of our Outdoor
Group's inventory consists of bulletins and 30-sheet posters located near
federal highways where the Federal Highway Beautification Act of 1965 would
require just compensation if we were required to remove them. We cannot be sure
that we will be successful in negotiating acceptable arrangements if our
displays are subject to removal or amortization, and what effect, if any, such
regulations may have on our operations. In addition, we are unable to predict
what additional regulations may be imposed on outdoor advertising in the future.
Legislation regulating the content of billboard advertisements has been
introduced in Congress in the past. Changes in laws and regulations affecting
outdoor advertising at any level of government could have a negative effect on
our outdoor advertising business. See "-- Tobacco Industry Regulation" and
"Business -- Government Regulation."
POTENTIAL LOSS OF ADVERTISERS DUE TO TOBACCO INDUSTRY REGULATION
Outdoor Advertising of tobacco products is affected by federal, state and local
legislation and various regulations. Local and state governments have passed
ordinances or statutes to limit outdoor advertising of tobacco products.
Increasing political pressure will likely lead to the passage of additional
legislation and the adoption of additional regulations to limit the content and
placement of outdoor advertising relating to the sale of tobacco products. In
addition, it has been reported that certain cigarette manufacturers who are
defendants in numerous class action suits throughout the United States have
proposed out of court settlements with respect to such suits that is likely to
include restrictions on billboard advertising by these and other cigarette
manufacturers.
We cannot determine the effect of these regulations or any legislation on our
outdoor advertising business and its overall financial position at this time. A
reduction in billboard advertising by the tobacco industry would cause an
immediate reduction in direct revenue from tobacco advertisers and
simultaneously increase the available space on the inventory of billboards in
the outdoor advertising industry. This could in turn result in a lowering of
rates in each of our markets or limit the ability of the industry as a whole to
increase rates for some period of time. Such a development could have an adverse
effect on our business.
CONTROL OF THE-COMBINED COMPANY BY HICKS MUSE
Prior to the LIN Merger and the Capstar Merger, Thomas O. Hicks and affiliates
of Hicks Muse hold approximately 11.9% of the outstanding shares of Chancellor
Media common stock. Affiliates of Hicks Muse have a controlling interest in
Capstar and LIN and a large investment in Chancellor Media. Immediately
following the LIN Merger and the Capstar Merger and the issuance of Chancellor
Media common stock, it is expected that Mr. Hicks and affiliates of Hicks Muse
will control approximately 30.7% of the
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<PAGE> 26
outstanding shares (26.2% on a fully-diluted basis) of Chancellor Media common
stock. Additionally, Messrs. Hicks, Lawrence D. Stuart, Jr., and Michael J.
Levitt, each directors of Chancellor Media, are also principals or executive
officers of Hicks Muse. Accordingly, Mr. Hicks and Hicks Muse will continue to
have a great deal of influence over the management policies of Chancellor Media
and all matters submitted to a vote of the holders of Chancellor Media common
stock. Also, the combined voting power of Mr. Hicks and Hicks Muse may have the
effect of discouraging certain types of transactions involving an actual or
potential change of control of Chancellor Media.
POTENTIAL ADVERSE CONSEQUENCES TO HOLDERS OF THE NOTES IF A COURT FINDS A
FRAUDULENT CONVEYANCE
Various fraudulent conveyance laws have been passed for the protection of
creditors. These laws may be applied by a court to subordinate or avoid the
Notes or the Guarantees in favor of our other existing or future creditors or
those of the Guarantors.
If a court in a lawsuit on behalf of one of our unpaid creditors or a
representative of one of our creditors were to find that, at the time we issued
the Notes, we:
- - intended to hinder, delay or defraud any existing or future creditor or
considered insolvency with the intent to favor one or more creditors over
others; or
- - did not receive fair consideration or reasonably equivalent value for issuing
the Notes and we,
- were insolvent;
- were made insolvent by issuing the Notes;
- were engaged or about to engage in a business or transaction for which our
remaining assets would be unreasonably small to carry on our business; or
- intended to take on, or believed that we would take on, more debts than we
could pay,
such court could void our obligations under the Notes and void such
transactions. On the other hand, in such event, claims of holders of such Notes
could be subordinated to claims of our other creditors.
Our obligations under the Notes are guaranteed by each of the Guarantors. If a
court were to find that:
- - the Guarantee was taken on by the Guarantor with the intent to hinder, delay
or defraud any existing or future creditor or the Guarantor considered
insolvency with the intent to favor one or more creditors over others; or
- - the Guarantor did not receive fair consideration or reasonably equivalent
value for issuing the Guarantee and the Guarantor,
- was insolvent;
- was made insolvent by issuing the Guarantee;
20
<PAGE> 27
- was engaged or about to engage in a business or transaction for which its
remaining assets of the Guarantor would be unreasonably small to carry on
its business; or
- intended to take on, or believed that it would take on, more debts than it
could pay,
the court could void or subordinate the Guarantee in favor of the Guarantor's
creditors. Among other things, a legal challenge to any of the Guarantees based
on fraudulent conveyance grounds may focus on the benefit, if any, realized by a
Guarantor as a result our issuance of the Notes.
If any Guarantee is avoided or deemed to be unenforceable, holders of the Notes
would not have any claim against that Guarantor. Such holders would only be our
creditors and creditors of the remaining Guarantors, if any. In such event, the
claims of the holders of the Notes against such Guarantor would be subject to
the prior payment of all liabilities and preferred stock claims of the
Guarantor. The Guarantors cannot be sure that there would be enough assets to
satisfy the claims of the holders of the Notes relating to any voided portion of
a Guarantee.
Based upon information currently available to us, we believe that the Notes and
the Guarantees are being incurred for proper purposes and in good faith. Also,
we, and each of the Guarantors:
- - are solvent and will continue to be solvent after giving effect to the
issuance of the Notes and the Guarantees, as the case may be;
- - will have enough capital for carrying on its business after the issuance of
the Notes and the Guarantees, as the case may be; and
- - will be able to pay our debts.
DIFFICULTY OF SATISFYING PAYMENT OBLIGATIONS UPON A CHANGE OF CONTROL
If a Change of Control occurs, we may be required to make an offer to purchase
all of the Notes then outstanding. We would be required to purchase the Notes at
101% of their principal amount, plus accrued interest to the date of repurchase.
If a Change of Control occurs, we cannot be sure that we would have enough funds
to pay for all of the Notes. If we are required to purchase the Notes, we would
need to secure third-party financing if we do not have available funds to meet
our purchase obligations. However, we cannot be sure that we would be able to
secure such financing on favorable terms, if at all.
Also, our financing arrangements will restrict our ability to repurchase the
notes, including pursuant to a Change of Control Offer. Furthermore, a Change of
Control will result in an event of default under the senior loan agreement and
may lead to an acceleration of other senior indebtedness, if any. In such event,
the subordination provisions of the Notes would require us to pay our senior
loan agreement and any other senior indebtedness in full before repurchasing the
Notes. In addition, a Change of Control could require us to repurchase our
existing notes and Chancellor Media could be required to offer to redeem the 7%
Convertible Preferred Stock of Chancellor Media (the "7% Convertible Preferred
Stock") and the $3.00 Convertible Exchangeable Preferred Stock of Chancellor
Media (the "$3.00 Convertible Preferred Stock"). See "Description of New
Notes -- Change of Control," "-- Subordination," and "Description of Certain
Indebtedness." The inability to
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<PAGE> 28
repay senior indebtedness, if accelerated, and to purchase all of the tendered
Notes or tendered existing notes, would constitute an event of default under the
Indenture.
LACK OF AN ESTABLISHED MARKET FOR THE NOTES
Since the Offering, there has been no public market for the Notes. We do not
plan on listing the Notes on any securities exchange. The initial purchaser has
told us that it plans on making a market in the Notes, but it does not have to
do so, and may discontinue such activities at any time. Accordingly, we cannot
determine:
- - the likelihood that an active market for the Notes will develop;
- - the liquidity of any such market;
- - the ability of holders to sell their Notes; or
- - the prices that they may obtain for their Notes if sold.
Future trading prices for the Notes will depend upon many factors, including,
among others, our operating results, the market for similar securities and
changing interest rates.
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<PAGE> 29
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the New Notes. In
consideration for issuing the New Notes as contemplated in this Prospectus, we
will receive in exchange Old Notes in like principal amount, which will be
cancelled and as such will not result in any increase in our indebtedness.
CAPITALIZATION
The following table sets forth the (i) actual capitalization of the Company at
June 30, 1998, (ii) such pro forma capitalization as adjusted to give effect to
the Completed Transactions, the 12 1/4% Preferred Stock Consent Solicitation (as
defined on page 44), the 12 1/4% Debentures Tender Offer (as defined on page 44)
and the Original Offering and (iii) such pro forma capitalization as further
adjusted to give effect to the Pending Transactions (excluding the Petry
Acquisition and the Pegasus Acquisition). See "Pro Forma Financial Information"
on page P-1.
<TABLE>
<CAPTION>
COMPANY AS ADJUSTED
COMPANY FOR THE COMPLETED COMPANY
HISTORICAL TRANSACTIONS PRO FORMA
---------- ------------------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Long-term debt:
Senior Credit Facility(1)................... $1,278,000 $1,411,015 $3,094,873(2)
9 3/8% Senior Subordinated Notes due 2004... 200,000 200,000 200,000
8 3/4% Senior Subordinated Notes due 2007... 200,000 200,000 200,000
10 1/2% Senior Subordinated Notes due
2007...................................... 100,000 100,000 100,000
8 1/8% Senior Subordinated Notes due 2007... 500,000 500,000 500,000
9% Senior Subordinated Notes due 2008....... -- 750,000 750,000
---------- ---------- ----------
Total long-term debt................. 2,278,000 3,161,015 4,844,873(2)
Redeemable preferred stock:
12 1/4% Series A Senior Cumulative
Exchangeable Preferred Stock.............. 119,445 -- --
Stockholder's equity:
Common stock................................ 1 1 1
Additional paid-in capital.................. 2,581,765 2,581,765 2,581,765
Accumulated deficit......................... (232,410) (247,634) (238,087)
---------- ---------- ----------
Total stockholder's equity................ 2,349,356 2,334,132 2,343,679
---------- ---------- ----------
Total capitalization................. $4,746,801 $5,495,147 $7,188,552(2)
========== ========== ==========
</TABLE>
23
<PAGE> 30
- -------------------------
(1) The Senior Credit Facility (as defined on page 129) currently provides for a
total commitment of $2.50 billion, consisting of a $1.60 billion reducing
revolving credit facility and a $900.0 million term loan facility. The
Company expects to engage in negotiations with its bankers regarding the
establishment of a new, expanded credit facility that would replace the
Senior Credit Facility. Although there can be no assurance, the Company
believes that amounts available under the Senior Credit Facility and amounts
potentially available under a new, expanded credit facility will be used to
finance the remaining Pending Transactions as well as future acquisitions.
Other potential sources of financing for the Pending Transactions and future
acquisitions include cash flow from operations, additional debt or equity
financings, the sale of non-core assets or a combination of those methods.
See "Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Liquidity and Capital Resources."
(2) Consistent with the presentation of the Company's pro forma financial
information included elsewhere herein, the pro forma capitalization does not
give effect to borrowings that the Company expects to make in order to
finance the Petry Acquisition and the Pegasus Acquisition. If the pro forma
capitalization is further adjusted to give effect to the Petry Acquisition
and the Pegasus Acquisition, the long-term debt amount reflected above under
the Senior Credit Facility would be approximately $3.3 billion, the total
long-term debt would be $5.1 billion and the total capitalization would be
$7.4 billion. The total cash financing required to consummate the Petry
Acquisition and the Pegasus Acquisition is expected to be $219.6 million.
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<PAGE> 31
SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA
We are providing the following financial information to aid you in your analysis
of the Company and an investment in the Notes. We derived this information from
our audited financial statements for 1993 through 1997 and our unaudited
financial statements for the six months ended June 30, 1997 and 1998. The
information is only a summary and you should read it in conjunction with our
historical financial statements and related notes included on page F-1 through
F-138 of this Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
---------------------------------------------------------- -----------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- --------- ---------- ----------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIO AND MARGIN DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS
DATA:
Gross revenues.......................... $106,813 $125,478 $ 186,365 $ 337,405 $ 663,804 $ 216,177 $ 626,011
Net revenues............................ 93,504 109,516 162,931 293,850 582,078 188,261 555,267
Operating expenses excluding
depreciation and amortization......... 60,656 68,852 97,674 174,344 316,248 111,162 316,862
Depreciation and amortization........... 33,524 30,596 47,005 93,749 185,982 53,912 193,060
Corporate general and administrative.... 2,378 2,672 4,475 7,797 21,442 5,651 15,079
Other nonrecurring costs(1)............. 7,002 -- -- -- -- -- 59,475
-------- -------- --------- ---------- ----------- ---------- ----------
Operating income (loss)................. (10,056) 7,396 13,777 17,960 58,406 17,536 (29,209)
Interest expense, net................... 13,730 13,718 19,144 37,050 83,095 22,741 87,085
Other (income) expense, net(2).......... (3,037) (6,361) 291 -- (17,997) (13,323) (14,829)
-------- -------- --------- ---------- ----------- ---------- ----------
Income (loss) before income taxes and
extraordinary item.................... (20,749) 39 (5,658) (19,090) (6,692) 8,118 (101,465)
Income tax expense (benefit)............ -- -- 192 (2,896) 7,802 4,259 (16,928)
-------- -------- --------- ---------- ----------- ---------- ----------
Income (loss) before extraordinary
item.................................. (20,749) 39 (5,850) (16,194) (14,494) 3,859 (84,537)
Extraordinary loss, net of tax
benefit(3)............................ -- 3,585 -- -- 4,350 4,350 31,865
-------- -------- --------- ---------- ----------- ---------- ----------
Net loss................................ (20,749) (3,546) (5,850) (16,194) (18,844) (491) (116,402)
Preferred stock dividends(4)............ -- -- -- -- 12,901 -- 16,702
-------- -------- --------- ---------- ----------- ---------- ----------
Net loss attributable to common stock... $(20,749) $ (3,546) $ (5,850) $ (16,194) $ (31,745) $ (491) $ (133,104)
======== ======== ========= ========== =========== ========== ==========
CONSOLIDATED BALANCE SHEET DATA (END OF
PERIOD):
Working capital......................... $ 7,873 $ 15,952 $ 30,556 $ 41,421 $ 112,644 $ 79,345 $ 176,775
Intangible assets, net.................. 212,517 233,494 458,787 853,643 4,404,443 1,183,569 4,503,891
Total assets............................ 283,505 297,990 552,347 1,020,959 4,961,477 1,483,513 5,281,596
Long-term debt (including current
portion)(5)........................... 152,000 174,000 201,000 358,000 2,573,000 525,000 2,278,000
Redeemable preferred stock.............. -- -- -- -- 331,208 -- 119,445
Stockholder's equity.................... 120,968 112,353 304,577 549,411 1,480,207 836,603 2,349,356
OTHER FINANCIAL DATA:
Broadcast cash flow(6).................. $ 32,848 $ 40,664 $ 65,257 $ 119,506 $ 265,830 $ 77,099 $ 238,405
Ratio of earnings to fixed charges(7)... -- 1.0x -- -- -- 1.3x --
</TABLE>
- -------------------------
(1) Consists of a non-cash charge resulting from the grant of employee stock
options prior to Chancellor Media's initial public offering in 1993 and of a
one-time executive charge related to the resignation of Scott K. Ginsburg as
President and Chief Executive Officer of Chancellor Media, Chancellor
Mezzanine Holdings Corporation ("CMHC") and the Company in 1998 and new
employment agreements entered into with certain members of executive
management.
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<PAGE> 32
(2) Includes gain on the dispositions of assets of $3,392, $6,991, $18,380 and
$13,323 in 1993, 1994, 1997 and the six months ended June 30, 1997,
respectively. Includes a gain on the disposition of representation contracts
of $11,270 and a gain from the WFLN Settlement (as defined on page 40) of
$3,559 for the six months ended June 30, 1998.
(3) In connection with its debt refinancing in 1994, 1997 and the six months
ended June 30, 1997, the Company wrote off the unamortized balance of
deferred debt issuance costs of $3,585, $4,350 and $4,350, respectively, as
an extraordinary charge. For the six months ended June 30, 1998, the Company
recorded an extraordinary charge of $31,865 (net of a tax benefit of
$17,158) consisting of premiums, estimated transaction costs and the
unamortized balance of deferred debt issuance costs related to the 12%
Debentures Tender Offer.
(4) For the year ended December 31, 1997, represents preferred stock dividends
on the 12% Preferred Stock (as defined on page 29) and the 12 1/4% Preferred
Stock (as defined on page 29) for the period September 5, 1997 to December
31, 1997. For the six months ended June 30, 1998, represents preferred stock
dividends on the 12% Preferred Stock for the period from January 1, 1998
through May 13, 1998 and on the 12 1/4% Preferred Stock for the entire
period. Such preferred stock was issued by the Company on September 5, 1997
in exchange for the substantially identical securities of Chancellor Radio
Broadcasting Company ("CRBC"), which was merged into CMCLA.
(5) The current portion of the Company's long-term debt was $10,625, $4,000,
$4,000, $26,500, $0, $0 and $0 at December 31, 1993, 1994, 1995, 1996 and
1997 and June 30, 1997 and 1998, respectively.
(6) Broadcast cash flow consists of operating income excluding depreciation and
amortization, corporate general and administrative expense and other
non-cash and non-recurring charges. Although broadcast cash flow is not
calculated in accordance with generally accepted accounting principles, the
Company believes that broadcast cash flow is widely used as a measure of
operating performance. Nevertheless, this measure should not be considered
in isolation or as a substitute for operating income, cash flows from
operating activities or any other measure for determining the Company's
operating performance or liquidity that is calculated in accordance with
generally accepted accounting principles. Broadcast cash flow does not take
into account the Company's debt service requirements and other commitments
and, accordingly, broadcast cash flow is not necessarily indicative of
amounts that may be available for reinvestment in the Company's business or
other discretionary uses.
(7) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs and the component of rental expense
believed by management to be representative of the interest factor thereon.
Earnings were insufficient to cover fixed charges by $20,749, $5,658,
$19,090 and $6,692 for the years ended December 31, 1993, 1995, 1996 and
1997, respectively, and by $101,465 for the six months ended June 30, 1998.
26
<PAGE> 33
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company's results of operations from period to period have not historically
been comparable because of the impact of the various acquisitions and
dispositions that the Company has completed. For a description of the
transactions completed by the Company during 1997 and to date in 1998, see
"Business -- Recent Developments -- Transactions Completed Since January 1,
1997."
In the following analysis, management discusses the Company's broadcast cash
flow. The performance of a radio station group is customarily measured by its
ability to generate broadcast cash flow. The two components of broadcast cash
flow are gross revenues (net of agency commissions) and operating expenses
(excluding depreciation and amortization, corporate general and administrative
expense and non-cash and non-recurring charges). The primary source of revenues
is the sale of broadcasting time for advertising. The Company's most significant
operating expenses for purposes of the computation of broadcast cash flow are
employee salaries and commissions, programming expenses, and advertising and
promotion expenses. The Company strives to control these expenses by working
closely with local station management. The Company's revenues vary throughout
the year. As is typical in the radio broadcasting industry, the Company's first
calendar quarter generally produces the lowest revenues, and the fourth quarter
generally produces the highest revenues.
Although broadcast cash flow is not calculated in accordance with generally
accepted accounting principles, the Company believes that it is widely used as a
measure of operating performance. Nevertheless, this measure should not be
considered in isolation or as a substitute for operating income, cash flows from
operating activities or any other measure for determining the Company's
operating performance or liquidity that is calculated in accordance with
generally accepted accounting principles. Broadcast cash flow does not take into
account the Company's debt service requirements and other commitments and,
accordingly, broadcast cash flow is not necessarily indicative of amounts that
may be available for dividends, reinvestment in the Company's business or other
discretionary uses.
SIX MONTHS ENDED JUNE 30, 1998 COMPARED TO SIX MONTHS ENDED JUNE 30, 1997
The Company's results of operations for the six months ended June 30, 1998 are
not comparable to the results of operations for the six months ended June 30,
1997 due to the impact of the Chancellor Merger (as defined on page 38), the
Viacom Acquisition (as defined on page 37), the Katz Acquisition (as defined on
page 39) and various other acquisitions and dispositions discussed in
"Business -- Recent Developments."
Net revenues for the six months ended June 30, 1998 increased 194.9% to $555.3
million compared to $188.3 million for the six months ended June 30, 1997.
Operating expenses excluding depreciation and amortization for the six months
ended June 30, 1998 increased 185.0% to $316.9 million compared to $111.2
million for the six months ended June 30, 1997. Operating income excluding
depreciation and amortization, corporate general and administrative expense and
other non-cash and non-recurring charges (broadcast cash flow) for the six
months ended June 30, 1998 increased 209.2% to $238.4 million
27
<PAGE> 34
compared to $77.1 million for the six months ended June 30, 1997. The increase
in net revenues, operating expenses, and broadcast cash flow for the six months
ended June 30, 1998 was primarily attributable to the net impact of the
Chancellor Merger, the Viacom Acquisition, the Katz Acquisition and the various
acquisitions and dispositions discussed elsewhere herein, in addition to the
overall net operational improvements realized by the Company.
Depreciation and amortization for the six months ended June 30, 1998 increased
258.1% to $193.1 million compared to $53.9 million for the six months ended June
30, 1997. The increase is primarily due to the impact of the Viacom Acquisition,
the Chancellor Merger and the Katz Acquisition, as well as other acquisitions
completed during 1997 and to date in 1998.
Corporate general and administrative expenses for the six months ended June 30,
1998 increased 166.8% to $15.1 million compared to $5.7 million for the six
months ended June 30, 1997. The increase is due to the growth of the Company,
and the related increase in properties and staff, primarily due to recent
acquisitions.
The executive severance charge of $59.5 million for the six months ended June
30, 1998 represents a one-time charge incurred in connection with the
resignation of Scott K. Ginsburg as President and Chief Executive Officer of the
Company.
As a result of the above factors, the Company realized an operating loss of
$29.2 million for the six months ended June 30, 1998 compared to $17.5 million
of operating income for the six months ended June 30, 1997.
Interest expense, net for the six months ended June 30, 1998 increased 282.9% to
$87.1 million compared to $22.7 million for the same period in 1997. The net
increase in interest expense was primarily due to (i) additional bank borrowings
under the Senior Credit Facility required to finance the various acquisitions
discussed elsewhere herein offset by repayment of borrowings from the net
proceeds of the Company's various radio station dispositions and the 1998 Equity
Offering (as defined on page 43), (ii) the assumption of CRBC's 9 3/8% Senior
Subordinated Notes due 2004 (the "9 3/8% Notes") and 8 3/4% Senior Subordinated
Notes due 2007 (the "8 3/4% Notes") upon consummation of the Chancellor Merger
on September 5, 1997, (iii) the assumption of Katz' 10 1/2% Senior Subordinated
Notes due 2007 (the "10 1/2% Notes") upon consummation of the Katz Acquisition
on October 28, 1997 and (iv) the issuance of the 8 1/8% Senior Subordinated
Notes due 2007 (the "8 1/8% Notes") by the Company on December 22, 1997.
For the six months ended June 30, 1997, other income of $13.3 million represents
a gain on the disposition of assets related to the dispositions of WNKS-FM in
Charlotte ($3.5 million), WPNT-FM in Chicago ($0.5 million), and WEJM-FM in
Chicago ($9.3 million). For the six months ended June 30, 1998, other income
represents a gain from the WFLN Settlement of $3.6 million.
The income tax benefit for the six months ended June 30, 1998 is comprised of
current state tax expense and a deferred federal income tax benefit.
For the six months ended June 30, 1997, the Company recorded an extraordinary
charge of $4.4 million (net of a tax benefit of $2.3 million) consisting of the
write-off of the unamortized balance of deferred debt issuance costs related to
the amendment and restatement of the Company's Senior Credit Facility on April
25, 1997. For the six months ended June 30, 1998, the Company recorded an
extraordinary charge of $31.9 million (net
28
<PAGE> 35
of a tax benefit of $17.2 million) consisting of premiums, estimated transaction
costs and the unamortized balance of deferred debt issuance costs related to the
12% Debentures Tender Offer.
Dividends on preferred stock were $16.7 million for the six months ended June
30, 1998, representing dividends on the 12% Exchangeable Preferred Stock (the
"12% Preferred Stock") for the period from January 1, 1998 through May 13, 1998
and on the 12 1/4% Series A Senior Cumulative Exchangeable Preferred Stock (the
"12 1/4% Preferred Stock") for the entire period, each issued in September 1997
as part of the Chancellor Merger. On May 13, 1998, the Company exchanged all
shares of the 12% Preferred Stock for its 12% Debentures. The 12% Debentures
were subsequently repurchased by the Company.
As a result of the above factors, the Company incurred a $133.1 million net loss
attributable to common stock for the six months ended June 30, 1998 compared to
a net loss attributable to common stock of $0.5 million for the six months ended
June 30, 1997.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
The Company's results of operations for the year ended December 31, 1997 are not
comparable to the results of operations for the year ended December 31, 1996 due
to the impact of the Chancellor Merger, the Viacom Acquisition, the Katz
Acquisition and various other station acquisitions and dispositions discussed in
"Business -- Recent Developments."
Net revenues for the year ended December 31, 1997 increased 98.1% to $582.1
million compared to $293.9 million for the year ended December 31, 1996.
Operating expenses excluding depreciation and amortization for 1997 increased
81.4% to $316.2 million compared to $174.3 million in 1996. Operating income
excluding depreciation and amortization, corporate general and administrative
expense and other non-cash and non-recurring charges (broadcast cash flow) for
1997 increased 122.4% to $265.8 million compared to $119.5 million in 1996. The
increase in net revenues, operating expenses, and broadcast cash flow was
primarily attributable to the net impact of the various acquisitions and
dispositions discussed elsewhere herein, in addition to the overall net
operational improvements realized by the Company.
Depreciation and amortization for 1997 increased 98.4% to $186.0 million
compared to $93.7 million in 1996. The increase is primarily due to the impact
of the various acquisitions and dispositions discussed elsewhere herein.
Corporate general and administrative expenses for 1997 increased 175.0% to $21.4
million compared to $7.8 million in 1996. The increase is due to the growth of
the Company, and related increase in properties and staff, primarily due to
recent acquisitions.
As a result of the above factors, operating income for 1997 increased 225.2% to
$58.4 million compared to $18.0 million in 1996.
Interest expense for 1997 increased 126.6% to $85.0 million compared to $37.5
million in 1996. The net increase in interest expense was primarily due to (i)
additional bank borrowings under the Senior Credit Facility required to finance
the various acquisitions discussed elsewhere herein offset by repayment of
borrowings from the net proceeds of the Company's various radio station
dispositions, (ii) the assumption of the 9 3/8% Notes and the 8 3/4% Notes upon
consummation of the Chancellor Merger on September 5, 1997 and
29
<PAGE> 36
(iii) the assumption of the 10 1/2% Notes upon consummation of the Katz
Acquisition on October 28, 1997.
The Company recorded a gain on disposition of assets of $18.4 million in 1997
related to the dispositions of WNKS-FM in Charlotte ($3.5 million), WPNT-FM in
Chicago ($0.5 million), WEJM-FM in Chicago ($9.3 million), WEJM-AM in Chicago
($3.4 million) and the FCC authorizations and certain transmission equipment
previously used in the operation of KYLD-FM in San Francisco ($1.7 million).
The provision for income tax expense of $7.8 million for the year ended December
31, 1997 is comprised of current federal and state income taxes of $6.8 million
and $4.8 million, respectively, and a deferred federal income tax benefit of
$3.8 million.
The Company recorded an extraordinary charge of $4.4 million (net of a tax
benefit of $2.3 million) in 1997, consisting of the write-off of the unamortized
balance of deferred debt issuance costs related to the amendment and restatement
of the Company's Senior Credit Facility on April 25, 1997.
Dividends on preferred stock were $12.9 million in 1997, representing dividends
on the 12 1/4% Preferred Stock and 12% Preferred Stock issued in September 1997
as part of the Chancellor Merger.
As a result of the above factors, the Company incurred a $31.7 million net loss
attributable to common stock in 1997 compared to a $16.2 million net loss in
1996.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
The Company's results of operations for the year ended December 31, 1996 are not
comparable to the results of operations for the year ended December 31, 1995 due
to the impact of the Company's acquisition of Pyramid Communications, Inc. on
January 17, 1996 (the "Pyramid Acquisition") and various other station
acquisitions and dispositions.
Net revenues for the year ended December 31, 1996 increased 80.4% to $293.9
million compared to $162.9 million for the year ended December 31, 1995.
Operating expenses excluding depreciation and amortization for 1996 increased
78.5% to $174.3 million compared to $97.7 million in 1995. Operating income
excluding depreciation and amortization, corporate general and administrative
expense and other non-cash and non-recurring charges (broadcast cash flow) for
1996 increased 83.1% or $54.2 million to $119.5 million compared to $65.3
million in 1995. The increase in net revenues, operating expenses, and broadcast
cash flow was primarily attributable to the impact of various station
acquisitions and dispositions, in addition to the overall net operational
improvements realized by the Company's radio stations.
Depreciation and amortization for 1996 increased 99.4% to $93.7 million compared
to $47.0 million in 1995. The increase represents additional depreciation and
amortization expenses due to the impact of recent acquisitions, offset by
decreases due to certain intangibles which became fully amortized in 1995 and
1996.
Corporate general and administrative expenses for 1996 increased 74.2% to $7.8
million compared to $4.5 million in 1995. The increase is due to the growth of
the Company, and related increase in properties and staff, primarily due to
recent acquisitions.
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As a result of the above factors, operating income for 1996 increased 30.4% to
$18.0 million compared to $13.8 million in 1995.
Interest expense for 1996 increased 95.4% to $37.5 million compared to $19.2
million in 1995. The net increase in interest expense was primarily due to
additional bank borrowings required to finance the Pyramid Acquisition as well
as the other station acquisitions, offset by repayment of borrowings under the
Company's prior senior credit facility from the net proceeds of the offering in
October 1996 by Chancellor Media of 18,000,000 shares of its Common Stock, the
net proceeds of which Chancellor Media contributed to the Company, and an
overall decrease in the Company's borrowing rates.
The provision for income tax expense for the year ended December 31, 1996 is
comprised of current federal and state taxes of $.5 million and $1.0 million,
respectively, and a deferred federal income tax benefit of $4.4 million.
As a result of the above factors, the Company incurred a $16.2 million net loss
attributable to common stockholders in 1996 compared to a $5.9 million net loss
in 1995.
LIQUIDITY AND CAPITAL RESOURCES
Overview. The Company historically has generated sufficient cash flow from
operations to finance its existing operational requirements and debt service
requirements, and the Company anticipates that this will continue to be the
case. The Company historically has used the proceeds of bank debt and private
and public debt and equity offerings, supplemented by cash flow from operations
not required to fund operational requirements and debt service, to fund
implementation of the Company's acquisition strategy.
On March 13, 1998, Chancellor Media completed an offering of 21,850,000 shares
of its Common Stock (the "1998 Equity Offering"). The net proceeds from the 1998
Equity Offering of approximately $994.6 million were contributed by Chancellor
Media to the Company, of which $696.0 million was used to repay all amounts
outstanding under the Revolving Loan Facility at March 13, 1998 and the
remaining $298.6 million was used for general corporate purposes, including
$60.0 million to finance the Bonneville Exchange (as defined on page 39), $150.0
million to finance the Capstar Loan (as defined on page 40) and $72.0 million to
finance a portion of the Houston Exchange (as defined on page 39).
The total cash financing required to consummate the Pending Transactions is
expected to be $1.86 billion (excluding payments to be made for working capital
and estimated fees and expenses related to the Whiteco Acquisition). The Company
expects to receive $21.0 million in cash from the completion of the Chicago
Disposition. Accordingly, the Company will require at least $1.84 billion in
additional financing to consummate the Pending Transactions. Although there can
be no assurance, the Company expects that $1.08 billion (excluding payments to
be made for working capital and estimated fees and expenses related to the
Whiteco Acquisition) of such amount will be required to be borrowed during the
fourth quarter of 1998 (for the Petry Acquisition and Whiteco Acquisition),
$344.6 million will be required to be borrowed during the first quarter of 1999
(for the Cleveland Acquisitions, as defined on page 42, and Pegasus
Acquisition), $90.0 million will be required to be borrowed during the second
quarter of 1999 (for the Phoenix Acquisition, as defined on page 42) and the
remaining $344.3 million will be
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required to be borrowed for the Capstar/SFX Transaction (as defined on page 41)
over the three year period in which the Capstar/SFX Stations (as defined on page
41) will be acquired. Depending on the timing of the consummation of the Pending
Transactions, the Company may need to obtain additional financing.
The Company anticipates that it will obtain any additional financing needed to
complete the Pending Transactions from the net proceeds from the Original
Offering and from amounts available under the Senior Credit Facility and amounts
potentially available under a new, expanded credit facility. The Senior Credit
Facility currently provides for a total commitment of $2.50 billion, consisting
of $1.60 billion reducing revolving credit facility and a $900.0 million term
loan facility. The Company expects to engage in negotiations with its bankers
regarding the establishment of a new, expanded credit facility that would
replace the Senior Credit Facility. Although there can be no assurance that
additional financing can be obtained, the Company believes that amounts
available under the Senior Credit Facility and amounts potentially available
under a new, expanded credit facility will be used to finance the remaining
Pending Transactions as well as future acquisitions. Other potential sources of
financing for the Pending Transactions include cash flow from operations,
additional debt or equity financings, the sale of non-core assets or a
combination of those methods.
In addition to debt service requirements under the Senior Credit Facility, the
Company is required to pay interest on the existing senior subordinated notes.
Interest payment requirements of the Company on the existing senior subordinated
notes are $87.4 million per year. Cash dividend requirements of Chancellor Media
on its $3.00 Convertible Preferred Stock and its 7% Convertible Preferred Stock
are $25.7 million per year. Because Chancellor Media is a holding company with
no significant assets other than the common stock of CMHC and LIN Merger
Subsidiary, Inc., Chancellor Media will rely solely on dividends from CMHC,
which in turn is expected to distribute dividends paid to it by the Company and
other subsidiaries to Chancellor Media, to permit Chancellor Media to pay cash
dividends on the $3.00 Convertible Preferred Stock and the 7% Convertible
Preferred Stock. The Senior Credit Facility and the indentures governing the
existing senior subordinated notes limit, but do not prohibit, the Company from
paying such dividends to CMHC.
RECENTLY-ISSUED ACCOUNTING PRINCIPLES
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
Disclosures about Segments of an Enterprise and Related Information. This
Statement establishes standards for reporting information about operating
segments in annual financial statements and requires reporting of selected
information about operating segments in interim financial reports issued to
stockholders. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. SFAS No. 131 is
effective for fiscal years beginning after December 15, 1997. Management does
not anticipate that this Statement will have a significant effect on the
Company's consolidated financial statements.
In February 1998, the Financial Accounting Standards Board issued SFAS No. 132,
Employers' Disclosure about Pensions and Other Postretirement Benefits. This
Statement revises employers' disclosures about pensions and other postretirement
benefit plans. It does not change the measurement or recognition of those plans.
SFAS No. 132 is effective for fiscal years beginning after December 15, 1997.
Management does not anticipate that
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this Statement will have a significant effect on the Company's consolidated
financial statements.
In April 1998, Accounting Standards Executive Committee ("ACSEC") issued
Statement of Position ("SOP") No. 98-5, "Reporting on the Costs of Start-Up
Activities" ("SOP 98-5") effective for fiscal years beginning after December 15,
1998. This SOP provides guidance on the financial reporting of start-up costs
and organization costs. It requires costs of start-up activities and
organization costs to be expensed as incurred. Initial application of SOP 98-5
should be reported as the cumulative effect of a change in accounting principle,
as described in Accounting Principles Board (APB) Opinion No. 20, "Accounting
Changes." When adopting this SOP, entities are not required to report the pro
forma effects of retroactive application. Management does not believe the
implementation of SOP 98-5 will have a material impact on the Company's
consolidated financial statements.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
Accounting for Derivative Instruments and Hedging Activities. This Statement
establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other contracts,
(collectively referred to as derivatives) and for hedging activities. SFAS No.
133 is effective for all fiscal quarters of all fiscal years beginning after
June 15, 1999. Management does not anticipate that this Statement will have a
material impact on the Company's consolidated financial statements.
YEAR 2000 ISSUE
The "Year 2000 Issue" is whether the Company's computer systems will properly
recognize date sensitive information when the year changes to 2000, or "00."
Systems that do not properly recognize such information could generate erroneous
data or cause a system to fail. The Company has conducted a comprehensive review
of its computer systems to identify the systems that could be affected by the
Year 2000 Issue and has developed an implementation plan. The Company uses
purchased software programs for a variety of functions, including general
ledger, accounts payable and accounts receivable accounting packages. The
companies providing these software programs are Year 2000 compliant, and the
Company has received Year 2000 compliance certificates from these software
vendors. The Company's Year 2000 implementation plan also includes ensuring that
all individual work stations are Year 2000 compliant. Costs associated with
ensuring the Company's systems are Year 2000 compliant are expected to be
minimal. The Company believes that the Year 2000 Issue will not pose significant
operational problems for the Company's computer systems and, therefore, will not
have an impact on the operations of the Company.
In addition, the Company reviews the computer systems of companies it intends to
acquire in order to assess whether such systems are Year 2000 compliant. To the
extent such systems are not Year 2000 compliant, the Company will develop an
implementation plan to ensure such systems are Year 000 compliant or will
convert such systems to the Company's computer systems which are Year 2000
compliant. There is no guarantee that the systems of companies to be acquired by
the Company in the future will be timely converted and would not have an adverse
effect on the operations of the Company. The Company does not expect the cost
associated with such efforts to be material.
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BUSINESS
The Company, an indirect wholly owned subsidiary of Chancellor Media, is a
diversified multi-media company that (i) owns and/or operates Chancellor Radio
Group ("CRG") which consists of 116 radio stations (including 10 stations
currently operated under time brokerage agreements) in 22 of the largest U.S.
markets and Puerto Rico, (ii) provides national media sales representation
("Media Representation") through Katz Media Group, Inc. ("Katz"), a wholly owned
subsidiary and (iii) has a significant and growing outdoor advertising presence
in Chancellor Outdoor Group ("COG"). Chancellor Media will also have a
meaningful presence in the television broadcasting sector through its recently
announced acquisition of LIN and an expanded presence in mid-sized markets
through its pending acquisition of Capstar. See "-- Recent Developments" and
"-- Pending Transactions of Chancellor Media."
CHANCELLOR RADIO GROUP
The Company's current radio station portfolio (including 10 stations currently
operated under time brokerage agreements) consists of 116 stations (87 FM and 29
AM), including a total of 15 markets in which the Company owns four or five FM
stations ("superduopolies"). The Company owns superduopolies in 11 of the
nation's 15 largest radio markets -- Los Angeles, New York, Chicago, San
Francisco, Dallas/Ft. Worth, Philadelphia, Washington, D.C., Houston, Detroit,
Denver and Minneapolis-St. Paul and in four other large markets -- Phoenix,
Pittsburgh, Orlando and Puerto Rico. Upon consummation of the Pending
Transactions, the Company will own 123 stations (92 FM and 31 AM) and will
increase its number of superduopolies to 16 with the addition of four FM and two
AM stations in Cleveland.
As a complement to its radio broadcasting operations, the Company formed a
national radio network, The AMFM Radio Networks, which began broadcasting
advertising over the Company's portfolio of stations and stations owned by
Capstar in January 1998. Management believes that The AMFM Radio Networks will
allow the Company to further leverage this broad station base, personalities and
advertising inventory by delivering a national audience of approximately 66
million listeners (including approximately 45 million listeners from the
Company's portfolio of stations) to network advertisers. The AMFM Radio Networks
has expanded through the acquisition of syndicated programming shows including
American Top 40 with Casey Kasem, Rockline, Modern Rock Live, Reelin' in the
Years and Live from the Pit.
The Company's radio station portfolio is geographically diversified and employs
a wide variety of programming formats, including adult contemporary,
contemporary hit radio, urban, jazz, country, oldies, news/talk, rock and
sports. Each of the Company's radio stations targets a specific demographic
audience within a market, with the majority of the stations appealing primarily
to 18 to 34 or 25 to 54 year old men and/or women, the demographic groups most
sought after by advertisers. Management believes that, because of the size and
diversity of its radio station portfolio, the Company is not unduly reliant on
the performance of any one station or market. No single market to be served by
the Company represented more than 9% of the Company's pro forma broadcast cash
flow for the six months ended June 30, 1998 (excluding the Petry Acquisition and
the Pegasus Acquisition).
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MEDIA REPRESENTATION
The Company entered into the media representation business with the acquisition
of Katz on October 28, 1997. Katz is a full-service media representation firm
serving multiple types of electronic media, with leading market share in the
representation of radio and television stations and cable television systems.
Katz is retained on an exclusive basis by radio stations, television stations
and cable television systems in over 200 designated market areas throughout the
United States, including at least one radio or television station in each of the
50 largest designated market areas, to sell national spot advertising air time.
Upon consummation of the Petry Acquisition, the Company will expand its presence
in the television representation segment.
CHANCELLOR OUTDOOR GROUP
In July 1998, the Company entered the outdoor advertising business with the
acquisition of Martin Media, an outdoor advertising company with over 14,500
billboards and outdoor displays in 12 states. Upon consummation of the Whiteco
Acquisition, the Chancellor Outdoor Group will own and operate over 36,000
outdoor advertising display faces in 37 states serving 15 regions and will rank
among the top five outdoor companies in the United States.
CONSOLIDATED COMPANY
On a pro forma basis after giving effect to the transactions described in "Pro
Forma Financial Information" beginning on page P-1, the Company would have had
net revenue and broadcast cash flow of approximately $705.7 million and $314.3
million, respectively, for the six months ended June 30, 1998, its pro forma
broadcast cash flow margin for such period would have been 45%, and
approximately 65% of pro forma net revenue for such period would have been
generated by markets in which the Company owns superduopolies. Furthermore, the
Company would have generated approximately 74% of its net revenue from radio
operations, approximately 11% from media representation operations and
approximately 15% from outdoor advertising operations. The Petry Acquisition and
the Pegasus Acquisition are excluded from the pro forma information included in
this Prospectus for a number of reasons including (a) uncertainties regarding on
what terms, and in some cases, whether such transaction will be consummated, (b)
whether such acquisition will be consummated by the Company or another
stand-alone entity formed by Chancellor Media, or (c) the availability of
appropriate financial information. In the opinion of management of the Company,
such information is not material to such pro forma presentations, either
individually or in the aggregate.
RECENT DEVELOPMENTS
SUMMARY OF ACQUISITIONS AND DISPOSITIONS SINCE JANUARY 1, 1997
Since January 1, 1997, the Company has completed (i) the Chancellor Merger,
which added 52 radio stations (36 FM and 16 AM) to the Company's portfolio of
stations, for a net purchase price of approximately $2.0 billion, (ii) the
acquisition of 33 radio stations for a net purchase price of approximately $1.7
billion, (iii) the exchange of 12 radio stations and $156.8 million in cash for
nine radio stations and $9.5 million in cash, (iv) the sale or other disposition
of 10 radio stations for $269.3 million in cash and a promissory note for $18.0
million, (v) the acquisition of Katz, a full service media representation firm,
for a
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net purchase price of approximately $379.1 million, (vi) the acquisition of
Global Sales Development, Inc., a consulting firm based in Richmond, Virginia,
for $0.7 million to lead the formation of a new marketing group division to
enhance revenues derived from radio sales promotion activities, (vii) the
acquisition of Martin Media and certain affiliated companies, an outdoor
advertising company with over 14,500 billboards and outdoor displays in 12
states serving 23 markets, for approximately $621.1 million, (viii) the
acquisition of approximately 350 additional billboards and outdoor displays in
five markets for approximately $17.8 million in cash (the "Other Outdoor
Acquisitions") and (ix) the acquisition of approximately a 22.4% non-voting
equity interest in Z-Spanish Media Corporation for $25.0 million in cash. These
transactions (excluding the Other Outdoor Acquisitions), together with the
acquisitions and dispositions completed by CRBC are referred to herein as the
"Completed Transactions."
TRANSACTIONS COMPLETED SINCE JANUARY 1, 1997
On January 31, 1997, the Company acquired WWWW-FM and WDFN-AM in Detroit from
affiliates of CRBC for $30.0 million in cash plus various other direct
acquisition costs. The Company had previously provided certain sales and
promotional functions to WWWW-FM and WDFN-AM under a joint sales agreement since
February 14, 1996 and subsequently operated the stations under a time brokerage
agreement since April 1, 1996.
On January 31, 1997, the Company acquired KKSF-FM and KDFC-FM/AM in San
Francisco from affiliates of the Brown Organization for $115.0 million in cash
plus various other direct acquisition costs. The Company had previously been
operating KKSF-FM and KDFC-FM/AM under a time brokerage agreement since November
1, 1996. On July 21, 1997, the Company sold KDFC-FM to Bonneville International
Corporation ("Bonneville") for $50.0 million in cash. The assets of KDFC-FM were
classified as assets held for sale in connection with the purchase price
allocation of the acquisition of KKSF-FM and KDFC-FM/AM and no gain or loss was
recognized by the Company upon consummation of the sale.
On April 1, 1997, the Company acquired WJLB-FM and WMXD-FM in Detroit from
Secret Communications, L.P. ("Secret") for $168.0 million in cash plus various
other direct acquisition costs. The Company had previously been operating
WJLB-FM and WMXD-FM under time brokerage agreements since September 1, 1996.
On April 3, 1997, the Company exchanged WQRS-FM in Detroit (which the Company
acquired on April 3, 1997 from Secret for $32.0 million in cash plus various
other direct acquisition costs), to affiliates of Greater Media Radio, Inc.
("Greater Media") in return for WWRC-AM in Washington, D.C. (now known as
WTEM-AM) and $9.5 million in cash. The net purchase price to the Company of
WWRC-AM was therefore $22.5 million. The Company had previously been operating
WWRC-AM under a time brokerage agreement since June 17, 1996.
On May 1, 1997, the Company acquired WDAS-FM/AM in Philadelphia from affiliates
of Beasley FM Acquisition Corporation for $103.0 million in cash plus various
other direct acquisition costs.
On May 15, 1997, the Company exchanged five of its six stations in Charlotte,
North Carolina (WPEG-FM, WBAV-FM/AM, WRFX-FM and WFNZ-AM) for two FM stations in
Philadelphia (WIOQ-FM and WUSL-FM) owned by EZ Communications, Inc. ("EZ") in
Philadelphia (the "Charlotte Exchange"), and also sold the Company's
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sixth radio station in Charlotte, WNKS-FM, to EZ for $10.0 million in cash and
recognized a gain of $3.5 million.
On May 30, 1997, the Company acquired WPNT-FM in Chicago from affiliates of
Century Broadcasting Company for $75.7 million in cash (including $2.0 million
for the purchase of the station's accounts receivable) plus various other direct
acquisition costs. On June 19, 1997, the Company sold WPNT-FM in Chicago to
Bonneville for $75.0 million in cash and recognized a gain of $0.5 million.
On June 3, 1997, the Company sold WEJM-FM in Chicago to affiliates of Crawford
Broadcasting for $14.8 million in cash and recognized a gain of $9.3 million.
On July 2, 1997, the Company acquired WLTW-FM and WAXQ-FM in New York and
WMZQ-FM, WJZW-FM, WZHF-AM and WBZS-AM in Washington, D.C. from Viacom
International, Inc. ("Viacom") for approximately $612.4 million in cash
including various other direct acquisition costs (the "Viacom Acquisition"). The
Viacom Acquisition was financed with (i) bank borrowings under the Senior Credit
Facility of $552.6 million; (ii) $53.8 million in escrow funds paid by the
Company on February 19, 1997 and (iii) $6.1 million financed through working
capital. In June 1997, Chancellor Media issued 5,990,000 shares of $3.00
Convertible Preferred Stock for net proceeds of $287.8 million which were
contributed to the Company and used to repay borrowings under the Senior Credit
Facility and subsequently were reborrowed on July 2, 1997 as part of the
financing of the Viacom Acquisition. On July 7, 1997, the Company sold WJZW-FM
in Washington, D.C. to affiliates of Capital Cities/ABC Radio for $68.0 million
in cash. The assets of WJZW-FM, as well as the assets of WZHF-AM and WBZS-AM,
which were also sold on August 13, 1997, were accounted for as assets held for
sale in connection with the purchase price allocation of the Viacom Acquisition
and no gain or loss was recognized by the Company upon consummation of the
sales.
On July 7, 1997, the Company sold the FCC authorizations and certain
transmission equipment previously used in the operation of KYLD-FM in San
Francisco to Susquehanna Radio Corporation ("Susquehanna") for $44.0 million in
cash and recognized a gain of $1.7 million. Simultaneously therewith, CRBC sold
the call letters "KSAN-FM" (which CRBC previously used in San Francisco) to
Susquehanna. On July 7, 1997, the Company and CRBC entered into a time brokerage
agreement to enable the Company to operate KYLD-FM on the frequency previously
assigned to KSAN-FM, and on July 7, 1997, CRBC changed the call letters of
KSAN-FM to KYLD-FM. Upon the consummation of the Chancellor Merger, the Company
changed the format of the new KYLD-FM to the format previously operated on the
old KYLD-FM.
On July 14, 1997, the Company completed the disposition of WLUP-FM in Chicago to
Bonneville for net proceeds of $80.0 million which were held by a qualified
intermediary pending the completion of the deferred exchange of WLUP-FM for
KZPS-FM and KDGE-FM in Dallas. On October 7, 1997, the Company applied the net
proceeds from the disposition of WLUP-FM of $80.0 million in cash, plus an
additional $3.5 million and various other direct acquisition costs, in a
deferred exchange of WLUP-FM for KZPS-FM and KDGE-FM in Dallas. The Company had
previously operated KZPS-FM and KDGE-FM under time brokerage agreements
effective August 1, 1997.
On July 21, 1997, the Company entered into a time brokerage agreement with CRBC
whereby the Company began managing certain limited functions of CRBC's stations
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KBGG-FM, KNEW-AM and KABL-FM in San Francisco pending the consummation of the
Chancellor Merger (as defined herein), which occurred on September 5, 1997.
On August 13, 1997, the Company sold WBZS-AM and WZHF-AM in Washington, D.C.
(acquired as part of the Viacom Acquisition) and KDFC-AM in San Francisco to
affiliates of Douglas Broadcasting ("Douglas") for $18.0 million in the form of
a promissory note. The promissory note, as amended on May 1, 1998, bears
interest at 7 3/4% from the closing date through February 28, 1998 and at 10.0%
from March 1, 1998 through the remainder of the term of the note, with a balloon
principal payment due four years after closing. At closing, Douglas posted a
$1.0 million letter of credit for the benefit of the Company that will remain
outstanding until all amounts due under the promissory note are paid.
On August 27, 1997, the Company sold WEJM-AM in Chicago to Douglas for $7.5
million in cash and recognized a gain of $3.3 million.
On September 5, 1997, pursuant to an Amended and Restated Agreement and Plan of
Merger, dated as of February 19, 1997 and amended and restated on July 31, 1997
(the "Chancellor Merger Agreement"), among Chancellor Broadcasting, CRBC,
Evergreen Media Corporation ("Evergreen"), Evergreen Mezzanine Holdings
Corporation ("EMHC") and Evergreen Media Corporation of Los Angeles ("EMCLA"),
(i) Chancellor was merged (the "Parent Merger") with and into EMHC, a direct,
wholly-owned subsidiary of Evergreen, with EMHC remaining as the surviving
corporation and (ii) CRBC was merged (the "Subsidiary Merger") with and into
EMCLA, a direct, wholly-owned subsidiary of EMHC, with EMCLA remaining as the
surviving corporation (collectively, the "Chancellor Merger"). Upon consummation
of the Parent Merger, Evergreen was renamed Chancellor Media Corporation and
EMHC was renamed CMHC. Upon consummation of the Subsidiary Merger, EMCLA was
renamed CMCLA. Consummation of the Chancellor Merger added 52 radio stations (36
FM and 16 AM) to the Company's portfolio of stations, including 13 stations in
markets in which the Company previously operated. The total purchase price
allocated to net assets acquired was approximately $2.0 billion which included
(i) the conversion of each outstanding share of Chancellor Common Stock into
0.9091 shares of Chancellor Media's Common Stock, resulting in the issuance of
34,617,460 shares of Chancellor Media's Common Stock at $15.50 per share, (ii)
the assumption of long-term debt of CRBC of $949.0 million which included $549.0
million of borrowings outstanding under the CRBC senior credit facility, $200.0
million of CRBC's 9 3/8% Notes and $200.0 million of CRBC's 8 3/4% Notes, (iii)
the issuance of 2,117,629 shares of CMCLA's 12% Preferred Stock in exchange for
CRBC's substantially identical securities with a fair value of $215.6 million
including accrued and unpaid dividends of $3.8 million, (iv) the issuance of
1,000,000 shares of CMCLA's 12 1/4% Preferred Stock in exchange for CRBC's
substantially identical securities with a fair value of $120.2 million including
accrued and unpaid dividends of $0.8 million, (v) the issuance of 2,200,000
shares of Chancellor Media's 7% Convertible Preferred Stock in exchange for
Chancellor's substantially identical securities with a fair value of $111.1
million including accrued and unpaid dividends of $1.1 million, (vi) the
assumption of stock options issued to Chancellor stock option holders with a
fair value of $35.0 million and (vii) estimated acquisition costs of $31.0
million.
On October 28, 1997, Chancellor Media and the Company acquired Katz, a
full-service media representation firm, in a tender offer transaction for a
total purchase price of
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approximately $379.1 million which included (i) the conversion of each
outstanding share of Katz Common Stock into the right to receive $11.00 in cash,
resulting in total cash payments of $149.6 million, (ii) the assumption of
long-term debt of Katz and its subsidiaries of $222.0 million which included
$122.0 million of borrowings outstanding under the Katz senior credit facility
and $100.0 million of 10 1/2% Notes of Katz Media Corporation (a subsidiary of
Katz) and (iii) estimated acquisition costs of $7.5 million (the "Katz
Acquisition").
On December 29, 1997, the Company acquired five radio stations from Pacific and
Southern Company, Inc., a subsidiary of Gannett Co., Inc., consisting of
WGCI-FM/AM in Chicago for $140.0 million, KKBQ-FM/AM in Houston for $110.0
million and KHKS-FM in Dallas for $90.0 million, for an aggregate purchase price
of $340.0 million in cash plus various other direct acquisition costs.
On January 30, 1998, the Company acquired KXPK-FM in Denver from Ever Green
Wireless LLC (which is unrelated to the Company) for $26.0 million in cash plus
various other direct acquisition costs, of which $1.7 million was previously
paid by CRBC as escrow funds and are classified as other assets at December 31,
1997. The Company had previously operated KXPK-FM under a time brokerage
agreement since September 1, 1997.
On April 3, 1998, the Company exchanged WTOP-AM in Washington, KZLA-FM in Los
Angeles and WGMS-FM in Washington plus $63.0 million in cash (including $3.0
million paid by the Company in escrow and classified as other assets at December
31, 1997) to Bonneville for WBIX-FM in New York, KLDE-FM in Houston and KBIG-FM
in Los Angeles (the "Bonneville Exchange"). The Company had previously operated
KLDE-FM and KBIG-FM under time brokerage agreements since October 1, 1997 and
WBIX-FM since October 10, 1997, and had sold substantially all of the broadcast
time of WTOP-AM, KZLA-FM and WGMS-FM to Bonneville since October 1, 1997.
On April 13, 1998, the Company and Secret entered into a settlement agreement
regarding WFLN-FM in Philadelphia. Previously in August 1996, the Company and
Secret had entered into an agreement under which the Company would acquire
WFLN-FM from Secret for $37.8 million in cash. In April 1997, the Company
entered into an agreement to sell WFLN-FM to Greater Media for $41.8 million in
cash. On July 16, 1997, Secret purported to terminate the sale of WFLN-FM to the
Company. The Company subsequently brought suit against Secret to enforce its
rights to acquire WFLN-FM. Pursuant to a court settlement entered in August 1997
and the settlement agreement between the Company and Secret entered on April 13,
1998, (i) Secret sold WFLN-FM directly to Greater Media for $37.8 million, (ii)
Greater Media deposited $4.1 million (the difference between the Company's
proposed acquisition price for WFLN-FM from Secret and the Company's proposed
sale price for WFLN-FM to Greater Media) with the court and (iii) the Company
received $3.5 million of such amount deposited by Greater Media with the court,
plus interest earned during the period which the court held such amounts (the
"WFLN Settlement"), and Secret received the balance of such amounts.
On May 29, 1998, as part of the Capstar/SFX Transaction, the Company exchanged
WAPE-FM and WFYV-FM in Jacksonville (valued for purposes of the Capstar/SFX
Transaction at $53.0 million) plus $90.3 million in cash to Capstar in return
for KODA-FM in Houston (the "Houston Exchange"). Furthermore, on May 29, 1998,
Capstar sold KKPN-FM in Houston (acquired by Capstar as part of Capstar's
acquisition
39
<PAGE> 46
of SFX Broadcasting, Inc. ("SFX")) due to the attributable ownership of Hicks
Muse in both Capstar and the Company in order to comply with the FCC's multiple
ownership limits. In connection with Capstar's sale of KKPN-FM, the Company
received a commission from Capstar of $1.7 million. On May 29, 1998, the Company
also provided a loan (the "Capstar Loan") to Capstar in the principal amount of
$150.0 million as part of the Capstar/SFX Transaction. The Capstar Loan bears
interest at the rate of 12% per annum (subject to increase in certain
circumstances), and is secured by a senior pledge of common stock of Capstar's
direct subsidiary. A portion of the Capstar Loan will be prepaid by Capstar in
connection with the Company's acquisition of, and the proceeds of such
prepayment would be used by the Company as a portion of the purchase price for,
each Capstar/SFX Station. Hicks Muse, which is a substantial shareholder of the
Company, controls Capstar, and certain officers and directors of the Company are
directors and/or executive officers of Capstar and/or Hicks Muse.
On June 1, 1998, the Company acquired WWDC-FM/AM in Washington, D.C. from
Capitol Broadcasting Company and its affiliates for $74.1 million in cash
(including $2.1 million for the purchase of the stations' accounts receivable)
plus various other direct acquisition costs, of which $4.0 million was
previously paid by the Company as escrow funds and are classified as other
assets at December 31, 1997 (the "Capitol Broadcasting Acquisition").
On May 1, 1998, the Company formed a new marketing group division in an effort
to enhance the revenues the Company derives from its sales promotion activities.
On June 1, 1998, the Company acquired Global Sales Development, Inc., a
consulting firm based in Richmond, Virginia, for $0.7 million in cash plus
various other direct acquisition costs to lead its marketing efforts for this
new division.
On June 15, 1998, the Company's national radio network, The AMFM Radio Networks,
acquired the syndicated programming shows of Global Satellite Network for $14.0
million in cash plus various other direct acquisition costs. The syndicated
programming shows acquired include "Rockline", "Modern Rock Live", "Reelin' in
the Years" and the concert series "Live from the Pit".
On July 31, 1998, the Company acquired Martin Media and certain affiliated
companies ("Martin Media"), an outdoor advertising company with over 13,000
billboards and outdoor displays in 12 states serving 23 markets, for $610.7
million in cash less $33.3 million which represents the remaining purchase price
for the Kunz Option (as defined on page 41) plus working capital of $19.4
million subject to certain adjustments and various other direct acquisition
costs of approximately $10.0 million (the "Martin Acquisition"). Additionally,
the Company paid $14.3 million for properties acquired by Martin Media
subsequent to the purchase agreement date of June 22, 1998 and prior to the
closing on July 31, 1998. The additional properties acquired from Martin added
approximately 1,500 billboards and outdoor displays in four of Martin Media's 23
existing markets.
In September and November 1998, the Company acquired approximately 350
additional billboards and outdoor displays in five markets for approximately
$17.8 million in cash (the "Other Outdoor Acquisitions").
On October 9, 1998, the Company acquired approximately a 22.4% non-voting equity
interest in Z-Spanish Media Corporation ("Z Spanish Media") for approximately
$25.0 million in cash. Z Spanish Media, which is headquartered in Sacramento,
California,
40
<PAGE> 47
is the owner and operator of 22 Hispanic format radio stations in California,
Texas, Arizona and Illinois.
On October 23, 1998, the Company acquired Primedia Broadcast Group, Inc. and
certain of its affiliates, which own and operate eight FM stations in Puerto
Rico, for approximately $75.0 million in cash less working capital of $1.3
million plus other direct acquisition costs of $1.1 million.
PENDING TRANSACTIONS OF CMCLA
On July 31, 1997, Martin Media paid $6,000 to Kunz & Company for an option to
purchase approximately 1,000 display faces of its Kunz Outdoor Advertising
division for $33,289 in cash plus various other direct acquisition costs (the
"Kunz Option"). Although there can be no assurance, the Company expects that the
exercise of the Kunz Option will be consummated in the fourth quarter of 1998.
On February 20, 1998, the Company entered into an agreement to acquire from
Capstar KTXQ-FM and KBFB-FM in Dallas/Ft. Worth, KODA-FM, KKRW-FM and KQUE-AM in
Houston, KPLN-FM and KYXY-FM in San Diego and WVTY-FM, WJJJ-FM, WXDX-FM and
WDVE-FM in Pittsburgh (collectively, the "Capstar/SFX Stations") for an
aggregate purchase price of approximately $637.5 million in a series of
purchases and exchanges over a period of three years (the "Capstar/SFX
Transaction"). The Capstar/SFX Stations were acquired by Capstar as part of
Capstar's acquisition of SFX on May 29, 1998. On May 29, 1998, the Company
completed the Houston Exchange and began operating the remaining ten Capstar/SFX
Stations under time brokerage agreements. The Company will pay approximately
$494.3 million for the remaining ten Capstar Stations. The Company is currently
assessing whether the terms of the Capstar/SFX Transaction will be modified upon
the consummation of the Capstar Merger by Chancellor Media.
On April 8, 1998, the Company entered into an agreement to acquire Petry Media
Corporation, a leading independent television representation firm, for
approximately $150.0 million in cash. On June 3, 1998, the DOJ issued a second
request for additional information under the HSR Act in connection with the
Petry Acquisition. The Company and Petry are still negotiating with the DOJ
regarding this transaction and have agreed to extend the waiting period under
the HSR Act pending completion of these discussions.
On August 11, 1998, the Company entered into agreements to acquire four FM and
two AM radio stations in Cleveland for an aggregate purchase price of
approximately $275.0 million in cash plus various other direct acquisition costs
(the "Cleveland Acquisitions"). The Cleveland Acquisitions consist of the
purchase by the Company of (i) WDOK-FM and WRMR-AM from Independent Group
Limited Partnership, (ii) WZAK-FM from Zapis Communications, (iii) Zebra
Broadcasting Corporation which owns WZJM-FM and WJMO-AM and (v) Wincom
Broadcasting Corporation which owns WQAL-FM. The consummation of each of the
Cleveland Acquisitions (other than the Wincom Acquisition) is contingent upon
the consummation of each of the other Cleveland Acquisitions (other than the
Wincom Acquisition). Although there can be no assurance, the Company expects
that the Cleveland Acquisitions will be consummated in the first quarter of
1999.
On August 20, 1998, the Company entered into an agreement to sell WMVP-AM in
Chicago to ABC, Inc. for $21.0 million in cash (the "Chicago Disposition").
Although
41
<PAGE> 48
there can be no assurance, the Company expects that the Chicago Disposition will
be consummated in the fourth quarter of 1998.
On August 31, 1998, the Company entered into an agreement to acquire the assets
of the Outdoor Advertising division of Whiteco Industries, Inc., an outdoor
advertising company with over 21,800 billboards and outdoor displays in 34
states, for $930.0 million in cash plus working capital and various other direct
acquisition costs (the "Whiteco Acquisition"). The DOJ has requested that the
Company and Whiteco submit certain additional information on a voluntary basis
in connection with the DOJ's review of the Whiteco Acquisition. The Company and
Whiteco have responded to this request and are currently in discussions with the
DOJ regarding the terms on which this transaction may be completed. Although
there can be no assurance, the Company expects that the Whiteco Acquisition will
be consummated in the fourth quarter of 1998.
On September 3, 1998, the Company entered into an agreement to acquire Pegasus,
a television broadcasting company which owns a television station in Puerto
Rico, for approximately $69.6 million in cash. Although there can be no
assurance, the Company expects that the Pegasus Acquisition will be consummated
in the first quarter of 1999. In connection with the LIN Merger, the Company may
assign its rights under its agreement with Pegasus to LIN.
On September 15, 1998, the Company entered into an agreement to acquire KKFR-FM
and KFYI-AM in Phoenix from The Broadcast Group, Inc. for $90.0 million in cash
(the "Phoenix Acquisition"). Although there can be no assurance, the Company
expects that the Phoenix Acquisition will be consummated in the second quarter
of 1999.
The foregoing transactions are collectively referred to herein as the "Pending
Transactions." Consummation of each of the Pending Transactions discussed above
is subject to various conditions, including, in certain cases, approval from the
FCC and the expiration or early termination of any waiting period required under
the HSR Act. Except as described above, the Company believes that such
conditions will be satisfied in the ordinary course, but there can be no
assurance that this will be the case.
PENDING TRANSACTIONS OF CHANCELLOR MEDIA
On July 7, 1998, Chancellor Media entered into an agreement whereby the ultimate
parent of LIN will merge into Chancellor Media. Pursuant to this agreement,
Chancellor Media will issue .0300 shares of Chancellor Media Common Stock for
each share of LIN's Common Stock resulting in the issuance of approximately
17,700,000 shares (comprised of approximately 16,200,000 newly issued shares,
the assumption of LIN phantom stock units representing approximately 425,000
shares and the assumption of LIN options representing the right to purchase
approximately 1,075,000 shares). Upon consummation of the LIN Merger, it is
expected that LIN will own or operate 12 television stations in eight markets in
the United States. Upon consummation of the LIN Merger, LIN will be operated as
a separate, stand-alone company from CMCLA. Accordingly, the assets, liabilities
and results of operations of LIN will not be reflected in the consolidated
financial statements of the Company. Although there can be no assurance,
Chancellor Media expects that the LIN Merger will be consummated in the first
quarter of 1999.
On August 26, 1998, Chancellor Media and Capstar entered into an agreement to
merge in a stock-for-stock transaction that will create the nation's largest
radio broadcasting entity. Pursuant to this agreement, Chancellor Media will
acquire Capstar in a reverse
42
<PAGE> 49
merger in which Capstar will be renamed Chancellor Media Corporation. Each share
of Chancellor Media Common Stock will represent one share in the combined
entity. Each share of Capstar Common Stock will represent 0.480 shares of common
stock in the combined entity, subject to an upward adjustment not to exceed
0.025 shares to the extent that Capstar's 1998 cash flow from specified assets
exceeds certain specified targets. Upon consummation of its pending
transactions, Capstar will own and operate more than 355 radio stations serving
83 mid-sized markets nationwide. Upon consummation of the Capstar Merger,
Capstar's radio stations will be operated by stand-alone companies which are
separate from CMCLA and its subsidiaries. Accordingly, the assets, liabilities,
and results of operations of Capstar will not be reflected in the consolidated
financial statements of the Company. Although there can be no assurance,
Chancellor Media expects that the Capstar Merger will be consummated in the
second quarter of 1999.
1998 FINANCING TRANSACTIONS
On March 13, 1998, Chancellor Media completed the 1998 Equity Offering. The net
proceeds from the 1998 Equity Offering of approximately $994.6 million were
contributed to the Company and were used to reduce bank borrowings under the
revolving credit portion of the Senior Credit Facility and the excess proceeds
were initially invested in short-term investment grade securities. The Company
subsequently used the excess proceeds for general corporate purposes, including
the financing of the Bonneville Exchange, the Capstar Loan and a portion of the
Houston Exchange.
On May 8, 1998, the Company completed a consent solicitation (the "12% Preferred
Stock Consent Solicitation") to modify certain timing restrictions on its
ability to exchange all shares of its 12% Preferred Stock for its 12%
Subordinated Exchange Debentures due 2009 (the "12% Debentures"). Consenting
holders of 12% Preferred Stock received payments of $0.05 per share of 12%
Preferred Stock. On May 13, 1998, the Company exchanged the shares of 12%
Preferred Stock for 12% Debentures (the "12% Exchange"). In connection with the
12% Preferred Stock Consent Solicitation and 12% Exchange, the Company incurred
approximately $0.3 million in transaction costs which were recorded as deferred
debt issuance costs.
On June 10, 1998, the Company completed a cash tender offer (the "12% Debentures
Tender Offer") for all of its 12% Debentures for an aggregate repurchase cost of
$262.5 million which included (i) the principal amount of the 12% Debentures of
$211.8 million, (ii) premiums on the repurchase of the 12% Debentures of $47.8
million, (iii) accrued and unpaid interest on the 12% Debentures from May 14,
1998 through June 10, 1998 of $2.0 million and (iv) estimated transaction costs
of $1.0 million. In connection with the 12% Debentures Tender Offer, the Company
recorded an extraordinary charge of $31.9 million (net of a tax benefit of $17.2
million) consisting of the premiums, estimated transaction costs and the
write-off of the unamortized balance of deferred debt issuance costs.
On July 20, 1998, the Company completed a consent solicitation (the "12 1/4%
Preferred Stock Consent Solicitation") to modify certain timing restrictions on
its ability to exchange all shares of its 12 1/4% Preferred Stock for its
12 1/4% Subordinated Exchange Debentures due 2008 (the "12 1/4% Debentures").
Consenting holders of 12 1/4% Preferred Stock received payments of $0.05 per
share of 12 1/4% Preferred Stock. On July 23, 1998, the Company exchanged the
shares of 12 1/4% Preferred Stock for 12 1/4% Debentures (the "12 1/4%
Exchange"). In connection with the 12 1/4% Preferred Stock Consent Solicitation
43
<PAGE> 50
and 12 1/4% Exchange, the Company incurred approximately $0.2 million in
transaction costs which were recorded as deferred debt issuance costs.
On August 19, 1998, the Company completed a cash tender offer (the "12 1/4%
Debentures Tender Offer") for all of its 12 1/4% Debentures for an aggregate
repurchase cost of $144.5 million which included (i) the principal amount of the
12 1/4% Debentures of $119.4 million, (ii) premiums on the repurchase of the
12 1/4% Debentures of $22.7 million, (iii) accrued and unpaid interest on the
12 1/4% Debentures from August 16, 1998 through August 19, 1998 of $1.8 million
and (iv) estimated transaction costs of $0.6 million. In connection with the
12 1/4% Debentures Tender Offer, the Company recorded an extraordinary charge of
$15.2 million (net of a tax benefit of $8.2 million) consisting of the premiums,
estimated transaction costs and the write-off of the unamortized balance of
deferred debt issuance costs.
On September 30, 1998, the Company issued $750.0 million aggregate principal
amount of the Old Notes for estimated net proceeds of $730.0 million. The net
proceeds from the Original Offering will be used to finance a portion of the
Company's Pending Transactions. Prior to consummation of the Pending
Transactions, the Company used the net proceeds to temporarily reduce borrowings
outstanding under the revolving credit portion of the Senior Credit Facility.
The foregoing transactions are referred to herein as the "1998 Financing
Transactions."
OTHER TRANSACTIONS
On July 10, 1998, Chancellor Media entered into an agreement to acquire a 50%
economic interest in Grupo Radio Centro, S.A. de C.V. ("GRC"), an owner and
operator of radio stations in Mexico, for approximately $120.5 million in cash
and $116.5 million in Chancellor Media Common Stock. On October 15, 1998,
Chancellor Media announced that it had provided notice to GRC that it was
terminating the acquisition agreement in accordance with its terms.
44
<PAGE> 51
RADIO BROADCASTING
The following table sets forth selected information with respect to the
portfolio of radio stations that are owned by the Company as of October 31, 1998
or would be owned upon consummation of the Pending Transactions (subject to any
divestitures required by the FCC and/or the DOJ as a condition to approving any
of the Pending Transactions).
<TABLE>
<CAPTION>
RANKING OF
STATION STATION RANKING
MARKET BY AUDIENCE TARGET IN TARGET
MARKET(1) REVENUE(2) STATION SHARE(%)(3) STATION FORMAT DEMOGRAPHICS DEMOGRAPHICS(4)
--------- ---------- ------- ----------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Los Angeles, CA..... 1 KKBT-FM 3.8 Urban Contemporary Women 18-34 4
KYSR-FM 2.9 Modern Adult Contemporary Persons 25-54 11
KBIG-FM 2.6 Adult Contemporary Persons 25-54 12
KLAC-AM 2.2 Adult Standards/Sports Persons 35-64 19
KCMG-FM(5) 3.1 Rhythmic Adult Women 25-54 7
Contemporary
New York, NY........ 2 WLTW-FM 5.9 Soft Adult Contemporary Persons 25-54 2
WKTU-FM 4.2 Rhythmic Contemporary Persons 25-54 5
Hits
WHTZ-FM 5.1 Contemporary Hit Radio Persons 18-34 2
WBIX-FM(6) 1.5 Hot Adult Contemporary Women 25-49 13
WAXQ-FM 1.6 Classic Rock Persons 25-54 16
Chicago, IL......... 3 WGCI-FM 7.7 Urban Contemporary Persons 18-34 1
WNUA-FM 4.1 Smooth Jazz Persons 25-54 5
WLIT-FM 4.6 Soft Adult Contemporary Persons 25-54 3
WVAZ-FM 4.7 Adult Urban Contemporary Persons 25-54 2
WRCX-FM 3.2 Jamming Oldies Women 25-54 25
WGCI-AM 1.1 Gospel Persons 25-54 25
WMVP-AM+ 1.7 Sports/Talk, Comedy Men 25-54 12
San Francisco, CA... 4 KYLD-FM 4.7 Contemporary Hits Persons 18-34 1
Radio/Dance
KMEL-FM 3.5 Contemporary Hits Persons 18-34 2
KKSF-FM 2.8 Smooth Jazz Persons 25-54 6
KABL-AM 2.8 Adult Standards Persons 35-64 15
KISQ-FM 2.9 Hit Base R&B Adult Persons 25-54 5
Contemporary
KIOI-FM 3.1 Adult Contemporary Women 25-54 2
KNEW-AM 0.8 Country/Sports Persons 25-54 41
Dallas, TX.......... 5 KHKS-FM 8.0 Top 40 Women 18-34 1
KZPS-FM 3.3 Classic Rock Persons 25-54 6
KDGE-FM 2.5 Alternative Rock Persons 18-34 5
KSKY-AM N/M Southern Gospel N/M N/M
Music/Religious
KBFB-FM* 2.8 Soft Rock Persons 25-54 10
KTXQ-FM* 2.4 Jamming Oldies Persons 25-49 14
Philadelphia, PA.... 6 WDAS-FM 6.2 Urban Contemporary Persons 25-54 1
WUSL-FM 5.1 Urban Contemporary Women 18-34 1
WJJZ-FM 4.5 Smooth Jazz Persons 35-54 4
WIOQ-FM 3.9 Contemporary Hit Radio Persons 18-34 4
WYXR-FM 3.3 Hot Adult Contemporary Women 18-49 3
WDAS-AM 1.2 Gospel N/M N/M
</TABLE>
45
<PAGE> 52
<TABLE>
<CAPTION>
RANKING OF
STATION STATION RANKING
MARKET BY AUDIENCE TARGET IN TARGET
MARKET(1) REVENUE(2) STATION SHARE(%)(3) STATION FORMAT DEMOGRAPHICS DEMOGRAPHICS(4)
--------- ---------- ------- ----------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Washington, D.C..... 7 WMZQ-FM 5.5 Country Persons 25-54 2
WASH-FM 4.2 Adult Contemporary Women 25-54 2
WBIG-FM 3.7 Oldies Persons 25-54 8
WGAY-FM 3.4 Adult Contemporary Persons 35-64 7
WTEM-AM 1.4 Sports/Talk Men 18-49 15
WWRC-AM 0.4 Talk Persons 35-64 30
WWDC-FM 3.3 Album Oriented Rock Persons 18-34 6
WWDC-AM 0.8 Music of Your Life Persons 55+ 7
Houston, TX......... 8 KKBQ-FM 3.5 Fresh Country Persons 25-54 10
KLDE-FM 4.3 Oldies Persons 25-54 3
KLOL-FM 4.2 Rock Men 18-34 6
KTRH-AM 4.2 News/Sports Men 25-54 6
KBME-AM(7) 1.4 Popular Standards Persons 35-64 20
KODA-FM 7.4 Adult Contemporary Persons 25-54 1
KKRW-FM*(8) 3.8 Classic Rock Persons 25-54 7
KQUE-AM*(8) 1.1 Classic Rock Persons 25-54 28
Atlanta, GA......... 9 WFOX-FM 4.1 Oldies Persons 25-54 9
Boston, MA.......... 10 WJMN-FM 7.1 Contemporary Hits Persons 18-34 2
Radio/Rhythmic
WXKS-FM 5.8 Contemporary Hits Women 25-34 2
Radio/Top 40
WXKS-AM 1.7 Bloomberg News/Music Women 45-54 15
Memory
Detroit, MI......... 11 WJLB-FM 7.7 Urban Contemporary Persons 18-34 1
WNIC-FM 7.5 Adult Contemporary Women 25-54 1
WKQI-FM 4.3 Hot Adult Contemporary Women 25-54 5
WMXD-FM 3.9 Adult Urban Contemporary Persons 25-54 6
WWWW-FM 3.2 Country Women 25-54 11
WDFN-AM 1.6 Sports Men 25-49 9
WYUR-AM 0.5 Nostalgic N/M N/M
Miami/Ft.
Lauderdale, FL..... 12 WEDR-FM 6.1 Urban Contemporary Persons 25-54 3
WVCG-AM 0.4 Brokered(9) N/M N/M
Denver, CO.......... 14 KXKL-FM 4.8 Oldies Persons 25-54 8
KALC-FM 4.0 Hot Adult Contemporary Persons 18-34 5
KIMN-FM 3.2 70's Oldies Persons 25-54 9
KXPK-FM 2.3 Adult Modern Rock Persons 18-49 14
KVOD-FM 2.3 Classical Persons 25-54 18
KRRF-AM 0.6 Talk Men 25-54 18
</TABLE>
46
<PAGE> 53
<TABLE>
<CAPTION>
RANKING OF
STATION STATION RANKING
MARKET BY AUDIENCE TARGET IN TARGET
MARKET(1) REVENUE(2) STATION SHARE(%)(3) STATION FORMAT DEMOGRAPHICS DEMOGRAPHICS(4)
--------- ---------- ------- ----------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Minneapolis/St.
Paul, MN........... 15 KEEY-FM 7.6 Country Persons 25-54 2
KDWB-FM 8.5 Contemporary Hit Radio Persons 18-34 2
KQQL-FM 5.4 Oldies Persons 25-54 4
KTCZ-FM 3.7 Progressive Album Rock Men 25-49 9
WRQC-FM 3.1 Active Rock Men 18-34 3
KFAN-AM 2.1 Sports Men 18-49 9
KXBR-AM 0.5 Classic Country Persons 35-64 17
Phoenix, AZ......... 16 KOY-AM 4.5 Adult Standards Persons 35-64 14
KMLE-FM 5.4 Country Persons 25-54 1
KOOL-FM 4.4 Oldies Persons 25-54 5
KYOT-FM 3.8 Contemporary Jazz Persons 25-54 7
KZON-FM 3.7 Alternative Rock Persons 18-34 5
KISO-AM 0.4 Country Persons 35-54 30
KFYI-AM* 5.1 News/Talk Persons 25-54 10
KKFR-FM* 5.4 Urban Contemporary Hit Persons 18-34 3
Radio
San Diego, CA....... 17 KYXY-FM* 6.8 Soft Adult Contemporary Persons 25-54 1
KPLN-FM* 2.5 Classic Rock Persons 25-54 8
Cincinnati, OH...... 19 WUBE-FM(10) 8.6 Country Persons 25-54 1
WYGY-FM(10) 3.0 Young Country Men 18-34 8
WBOB-AM 0.7 Sports/Talk Men 18-49 14
WUBE-AM N/M Sports/Talk Men 25-49 N/M
Cleveland, OH....... 23 WZAK-FM* 9.0 Urban Contemporary Women 25-54 1
WDOK-FM* 6.3 Soft Adult Contemporary Women 25-54 2
WRMR-AM* 5.4 Adult Standard Men 25-54 17
WZJM-FM* 4.9 Contemporary Hits Radio Women 18-34 4
WQAL-FM* 4.0 Hot Adult Contemporary Persons 25-54 10
WJMO-AM* 2.1 Oldies Persons 25-54 14
Pittsburgh, PA...... 24 WWSW-FM 5.5 Oldies Persons 25-54 2
WWSW-AM(11) 0.5 Oldies Persons 25-54 22
WDVE-FM* 8.4 Rock Persons 25-54 1
WXDX-FM* 5.0 Alternative Rock Persons 18-34 2
WJJJ-FM* 3.9 Smooth Jazz Persons 25-54 10
WDRV-FM*(12) 3.0 Modern Hit Women 25-49 8
Orlando, FL......... 26 WJHM-FM 7.6 Urban Contemporary Persons 18-34 2
WOCL-FM 4.4 Oldies Persons 25-54 8
WXXL-FM 7.1 Contemporary Hit Radio Persons 18-34 1
WOMX-FM 5.9 Adult Contemporary Persons 25-54 2
Sacramento, CA...... 28 KFBK-AM 9.3 News/Talk Persons 25-54 2
KHYL-FM 4.3 Oldies Persons 25-54 5
KGBY-FM 4.2 Adult Contemporary Women 25-54 4
KSTE-AM 2.2 Talk Persons 25-54 16
Nassau/Suffolk
(Long Island) 45 WALK-FM 5.5 Adult Contemporary Persons 25-54 1
NY(13)...........
WALK-AM N/M Adult Contemporary Persons 35-64 N/M
</TABLE>
47
<PAGE> 54
<TABLE>
<CAPTION>
RANKING OF
STATION STATION RANKING
MARKET BY AUDIENCE TARGET IN TARGET
MARKET(1) REVENUE(2) STATION SHARE(%)(3) STATION FORMAT DEMOGRAPHICS DEMOGRAPHICS(4)
--------- ---------- ------- ----------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Riverside/San 64 KGGI-FM 6.1 Contemporary Hit Radio Persons 18-34 1
Bernardino, CA.....
KMRZ-AM 0.5 Oldies N/M N/M
Puerto Rico......... N/A WZNT-FM N/A Oldies/Classic Music Men 18-49/ Men N/A
25-54
WOYE-FM N/A Top 40 Persons 12-24/ N/A
18-34
WLDI-FM N/A Top 40 Persons 12-24/ N/A
18-34
WOQI-FM N/A Top 40 Persons 12-24/ N/A
18-34
WRPC-FM N/A Oldies/Classic Music Men 18-49/ Men N/A
25-54
WIOA-FM N/A Continuous Favorite Women 18-49/ N/A
Ballads/ Today's Hits Women 25-54
WIOB-FM N/A Continuous Favorite Women 18-49/ N/A
Ballads/ Today's Hits Women 25-54
WIOC-FM N/A Continuous Favorite Women 18-49/ N/A
Ballads/ Today's Hits Women 25-54
</TABLE>
- -------------------------
N/A: Not available
N/M: Not meaningful
+ Indicates station to be disposed of in a pending transaction.
* Indicates station to be acquired in a pending transaction.
(1) Actual city of license may differ from metropolitan market served in
certain cases.
(2) Ranking of principal radio market served by the station among all U.S.
radio broadcast markets by aggregate 1997 gross radio broadcasting revenue
as reported by James H. Duncan, Duncan's Radio Market Guide (1998 ed.).
(3) Information derived from The Arbitron Company, Spring 1998, Local Market
Reports in the specified markets for listeners age 12 and over, Monday to
Sunday, 6:00 a.m. to Midnight. Copyright, The Arbitron Company.
(4) Information derived from The Arbitron Company, Spring 1998, Local Market
Reports in the specified markets for the Target Demographics specified for
listening Monday to Sunday, 6:00 a.m. to Midnight. Copyright, The Arbitron
Company.
(5) The station ranking in the target demographic for KCMG-FM (formerly
KIBB-FM) for Spring, 1998 was changed from persons 25-54 to a target
demographic of Women 25-54 effective November 19, 1997.
(6) The format of WBIX-FM (formerly WNSR-FM) was changed from Modern Adult
Contemporary with a target demographic of Women 25-44 to Hot Adult
Contemporary with a target demographic of Women 25-49 effective January
21, 1998. The station ranking in the target demographic for WBIX-FM for
Spring 1998 is based on the new target demographic of Women 25-49.
(7) The format of KBME-AM (formerly KKBQ-AM) was changed from Country with
a target demographic of Persons 25-54 to Popular Standards with a target
demographic of Persons 35-64 effective January 15, 1998. The station
ranking in the
48
<PAGE> 55
target demographic for KBME-AM for Spring 1998 is based on the new target
demographic of Persons 35-64.
(8) Programming provided to KQUE-AM via simulcast of programming broadcast on
KKRW-FM.
(9) The Company sells airtime on WVCG-AM to third parties for broadcast of
specialty programming on a variety of topics.
(10) WUBE-FM and WYGY-FM are sold in combination.
(11) Programming provided to WWSW-AM via simulcast of programming broadcast on
WWSW-FM.
(12) The format of WDRV-FM (formerly WVTY-FM) was changed from Adult
Contemporary with a target demographic of Persons 25-54 to Modern Hit with
a target demographic of Women 25-49 effective February 27, 1998. The
station ranking in the target demographic of WDRV-FM for Spring 1998 is
based on the new target demographic of Women 25-49.
(13) Nassau/Suffolk (Long Island) may be considered part of the greater New
York market, although it is reported separately as a matter of convention.
OUTDOOR ADVERTISING
The following table sets forth selected information with respect to the
portfolio of outdoor displays that are owned by the Company as of October 31,
1998 or will be owned upon consummation of the Whiteco Acquisition (subject to
any divestitures required by the DOJ as a condition to approving the Whiteco
Acquisition).
<TABLE>
<CAPTION>
TOTAL
DISPLAYS
--------
<S> <C>
MARTIN MEDIA:
Los Angeles (North), CA..................................... 877
Washington, D.C............................................. 278
San Diego, CA............................................... 275
Pittsburgh, PA.............................................. 3,558
Cincinnati, OH.............................................. 811
Kansas City, MO............................................. 170
Riverside/San Bernardino, CA................................ 357
Hartford, CT................................................ 411
Las Vegas, NV............................................... 985
Scranton/Wilkes-Barre, PA................................... 981
Bakersfield/Visalia, CA..................................... 1,403
Lubbock, TX................................................. 676
Odessa/Midland, TX.......................................... 704
Topeka, KS.................................................. 862
Amarillo, TX................................................ 1,064
Charlottesville, VA......................................... 29
San Angelo, TX.............................................. 257
Bullhead/Laughlin, NV....................................... 357
</TABLE>
49
<PAGE> 56
<TABLE>
<CAPTION>
TOTAL
DISPLAYS
--------
<S> <C>
Yuma, AZ.................................................... 224
Abilene, TX................................................. 430
Sharon, PA.................................................. 218
Lawrence, KS................................................ 56
------
Total............................................. 14,983
======
WHITECO:
Central (Terre Haute, IN)................................... 1,737
Southwestern (Dallas, TX)................................... 1,701
Southeastern (Atlanta, GA).................................. 857
Providence, RI.............................................. 725
Western (St. Joseph, MO).................................... 2,345
Ohio (Columbus, OH)......................................... 1,295
Florida (Ocala, FL)......................................... 2,778
Milwaukee, WI............................................... 1,198
South Atlantic (Rocky Mt., NC).............................. 1,597
Harrisburg, PA.............................................. 1,318
Tyler, TX................................................... 1,755
Chicago, IL/Northwest, IN................................... 2,923
Evansville, IN.............................................. 1,030
Albany, NY.................................................. 680
------
Total............................................. 21,939
======
Grand Total....................................... 36,922
======
</TABLE>
COMPANY STRATEGY
The Company's overall strategy is to create a leading multi-media company with a
significant overlapping presence in radio and outdoor advertising markets. In
this regard, the Company has built a diversified portfolio of media assets which
enables the Company to deliver more options and greater value to its advertising
clients. The Company believes the multi-media platform creates significant
growth opportunities and synergies through cross selling, cross promotion and
cost savings in markets where radio and outdoor advertising operations overlap.
The Company plans on leveraging the extensive operating experience of its senior
management team to continue to enhance revenue and cash flow growth.
Radio Broadcast Strategy. The CRG senior management team, led by James E. de
Castro, President of CRG, has extensive experience in acquiring and operating
radio station groups. The CRG business strategy is to assemble and operate radio
station clusters in order to maximize the broadcast cash flow generated in each
market.
CRG seeks to capitalize on revenue growth and expense savings opportunities
through the successful integration of station cluster groups. Management
believes that radio station clusters can attract increased revenues in a market
by delivering larger combined audiences
50
<PAGE> 57
to advertisers and by engaging in joint marketing and promotional activities. In
addition, management expects to realize significant expense savings through the
consolidation of facilities and through the economies of scale created in areas
such as national representation commissions, employee benefits, insurance
premiums and other operating costs.
CRG also seeks to maximize station operating performance through intensive
market research, innovative programming and unique marketing campaigns to
establish strong listener loyalty and ensure steady long-term audience share
ratings. According to the Spring 1998 Arbitron ratings, CRG currently owns and
operates the top-ranked station group in 7 of the nation's 10 largest radio
revenue markets. During the Spring ratings period, CRG emerged as the ratings
leader in New York, Chicago and Philadelphia, adding to the list of major cities
including San Francisco, Detroit, Houston and Washington, D.C. where CRG already
holds the distinction of being the highest rated station group. CRG also
achieved substantial ratings improvements in Los Angeles, San Diego, Dallas,
Boston, Miami and Minneapolis, positioning CRG as the owner or operator of the
first or second best performing station groups in 12 of the nation's 17 largest
markets. Management believes the ratings growth is driven by CRG's ability to
attract talented people and to continue delivering quality programming to the
listeners.
CRG also seeks to leverage its radio expertise and platform and enhance revenue
and cash flow growth through the continued expansion of its national radio
network, The AMFM Radio Networks, as well as through the development of
non-traditional revenues derived from radio sales promotion activities.
Media Representation Strategy. The Company's overall strategy for its media
representation business is to create a leading national representation firm
serving all types of electronic media. The Company believes it can continue to
generate revenue and cash flow growth in the media representation business by
expanding its market share and improving its national sales effort. Management
will seek to increase market share by developing new clients, expanding
operations in existing and new markets and acquiring representation contracts of
its competitors. The Company will continue to provide the highest level of
quality service to its clients by offering comprehensive advertisement, planning
and placement services, as well as a broad range of value added benefits,
including marketing, research, consulting and programming advisory services. The
Company will also have the ability to expand its level of service to advertisers
through the growth of its unwired network of radio and television stations which
provides advertisers with greater flexibility and the ability to target specific
demographic groups or markets.
Outdoor Advertising Strategy. The Chancellor Outdoor Group is led by James A.
McLaughlin, President of COG, an outdoor advertising industry veteran with over
25 years of experience. The COG strategy is to create and develop one of the top
five outdoor advertising companies in the United States through the
consolidation of Martin Media, acquired in July 1998 and the pending acquisition
of Whiteco, expected to close in the fourth quarter of 1998, and additional
acquisitions that complement the Company's existing outdoor and radio markets.
Upon completion of the pending acquisition of Whiteco, COG will be one of the
top five outdoor advertising companies in the United States. COG believes there
are opportunities to generate significant revenue growth and cost savings
through the successful integration of the combined operations of Martin Media
and Whiteco.
51
<PAGE> 58
COG's strategy is to realize revenue and expense synergies through the
consolidation of certain sales management, leasing management, marketing, and
accounting and administrative support functions. Additionally, COG will focus on
strengthening its operating results by increasing market penetration, maximizing
rates and occupancy levels in each of its markets and capitalizing on
technological advances such as computer vinyl technology to enhance the
attractiveness and flexibility of the outdoor medium while reducing costs. COG
also seeks to realize incremental benefits in markets where outdoor and radio
operations overlap by introducing radio advertisers to outdoor advertising which
provides an additional low cost medium to advertisers with local marketing
needs.
Management believes its newly acquired outdoor advertising portfolio combined
with the strength of its broad radio platform, national radio network and
national representation business will solidify the Company's position as a
leading multi-media company with the ability to effectively respond to customers
needs through a variety of advertising solutions and mediums.
ADVERTISING
The primary source of the Company's revenues is the sale of broadcasting time
for local, regional and national advertising. On a pro forma basis approximately
65% of the Company's gross radio revenues would have been generated from the
sale of local advertising for the six months ended June 30, 1998. The Company
believes that radio is one of the most efficient, cost-effective means for
advertisers to reach specific demographic groups. The advertising rates charged
by the Company's radio stations are based primarily on (i) a station's ability
to attract audiences in the demographic groups targeted by its advertisers (as
measured principally by quarterly Arbitron rating surveys that quantify the
number of listeners tuned to the station at various times) and (ii) the supply
of and demand for radio advertising time. Advertising rates generally are the
highest during morning and evening drive-time hours.
Depending on the format of a particular station, there are predetermined numbers
of advertisements that are broadcast each hour. The Company determines the
number of advertisements broadcast hourly that can maximize available revenue
dollars without jeopardizing listening levels. Although the number of
advertisements broadcast during a given time period may vary, the total number
of advertisements broadcast on a particular station generally does not vary
significantly from year to year.
A station's sales staff generates most of its local and regional advertising
sales. To generate national advertising sales, the Company engages an
advertising representative for each of its stations that specializes in national
sales and is compensated on a commission-only basis. Most advertising contracts
are short-term and generally run only for a few weeks.
The Company's Katz media representation operations generate revenues primarily
through contractual commissions realized through the sale of national spot
advertising air time. National spot advertising air time is commercial air time
sold to advertisers on behalf of radio and television stations and cable systems
located outside the local markets of those stations and systems. Katz represents
its media clients pursuant to media representation contracts. Media
representation contracts typically have terms of up to ten years in initial
length. In connection with the substantial consolidation that has occurred in
the broadcast industry in recent years and the concomitant development of large
client station groups, the frequency of representation contract "buyouts" has
increased. These buyouts occur
52
<PAGE> 59
because station groups have tended to negotiate exclusive, long-term
representation contracts with a single media representation firm covering all of
the station group's stations, including stations acquired after the date of the
initial representation contract. In the event that one of the station group's
stations is sold to an owner represented by a different firm, representation
contracts are frequently bought out by the successor representation firm. Katz
generally amortizes the cost of acquiring new representation contracts
associated with a buyout over the expected benefit period, and also generally
recognizes a gain on disposition of representation contracts associated with a
buyout of an existing client's contract.
The Company's outdoor advertising business generates revenues by contracting
with advertising agencies for the display of the advertising campaigns of their
clients. The Company pays commissions to the agencies for contracts procured
through those agencies. The advertising rates are based on a particular
display's exposure or number of "impressions" delivered. The number of
"impressions" delivered by a display is determined by considering a number of
factors such as proximity to other displays, the speed and viewing angle of
approaching traffic, the national average of adults riding in vehicles and
whether the display is illuminated.
COMPETITION
The radio broadcasting industry is a highly competitive business. The success of
each of the Company's stations is dependent, to a significant degree, upon its
audience ratings and share of the overall advertising revenue within its market.
The Company's radio stations compete for listeners and advertising revenues
directly with other radio stations, as well as with other media, within their
respective markets. Radio stations compete for listeners primarily on the basis
of program content and by hiring on-air talent that appeals to a particular
demographic group. By building a strong listener base comprised of a specific
demographic group in each of its markets, the Company is able to attract
advertisers who seek to reach those listeners. Other media, including broadcast
television, cable television, newspapers, magazines, direct mail coupons and
billboard advertising also compete with the Company's stations for advertising
revenues. The Company also competes with other broadcasting operators for
acquisition opportunities, and prices for radio stations in major markets have
increased significantly in recent periods. To the extent that the rapid pace of
consolidation in the radio broadcasting industry continues, certain competitors
may emerge with larger portfolios of major market radio stations, greater
ability to deliver large audiences to advertisers and more access to capital
resources than does the Company. The audience ratings and market share for the
Company are and will be subject to change and any adverse change in a particular
market could have a material and adverse effect on the revenue of its stations
located in that market. There can be no assurance that any one of the Company's
stations will be able to maintain or increase its current audience ratings or
advertising revenue market share.
The radio broadcasting industry is also subject to competition from new media
technologies that are being developed or introduced, such as the delivery of
audio programming by cable television systems, DBS systems, streaming and other
audio systems that use the Internet for delivery and other digital audio
broadcasting and narrowcasting formats to local and national audiences. In
addition, the FCC has auctioned spectrum for a new satellite-delivered DARS.
These actions may result in the introduction of several new national or regional
satellite radio services with sound quality equivalent to compact discs.
53
<PAGE> 60
Another possible competitor to traditional radio is IBOC digital radio. IBOC
could provide multi-channel, multi-format digital radio services in the same
band width currently occupied by traditional AM and FM radio services. The
Company cannot predict at this time the effect, if any, that any such new
technologies may have on the radio broadcasting industry.
The success of the Company's Katz media representation operations depends on
Katz' ability to maintain and acquire representation contracts with radio and
television stations and cable systems, the inventory of time Katz represents and
the experience of Katz' executive management and sales personnel. The media
representation business is highly competitive, both in terms of competition to
gain client stations and to sell air time to advertisers. Katz competes not only
with other independent and network media representatives but also with direct
national advertising. Katz also competes on behalf of its clients for
advertising dollars with other media such as newspapers and magazines, outdoor
advertising, transit advertising, direct response advertising, yellow page
directories and point of sale advertising.
The Company's outdoor advertising business also faces competition from a variety
of sources, including other outdoor advertising companies and other media such
as radio, television, print media and direct mail marketing. Additionally, the
Company must also compete with other "out-of-home" advertising media, which
includes advertising displays in shopping malls, supermarkets, airports, sports
stadiums and arenas, movie theaters, and on taxis, buses, subways and other
public transportation. Because the Company's outdoor advertising is a new
endeavor for the Company and its management and due to the fact that many of the
Company's competitors in the outdoor advertising business are larger and have
more experience and resources in the business, there can be no assurance that
the Company will be able to compete successfully within the outdoor advertising
industry.
REGULATION OF RADIO AND OUTDOOR ADVERTISING
RADIO BROADCASTING
Introduction. The radio broadcasting industry is subject to extensive and
changing regulation over, among other things, program content, technical
operations and business and employment practices.
The ownership, operation and sale of radio broadcast stations (including those
licensed to the Company) are subject to the jurisdiction of the FCC, which acts
under authority granted by the Communications Act. The Communications Act
prohibits the assignment or transfer of control of an FCC license without the
prior consent of the FCC. In determining whether to grant requests for consent
to such assignments or transfers, and in determining whether to grant or renew a
radio broadcast license, the FCC considers a number of factors pertaining to the
licensee (and proposed licensee), including: limitations on alien ownership and
the common ownership of television broadcast, radio broadcast and daily
newspaper properties, the "character" of the licensee (and proposed licensee)
and those persons or entities that have "attributable" interests, and compliance
with the Anti-Drug Abuse Act of 1988. Among other things, the FCC assigns
frequency bands for radio broadcasting; determines the particular frequencies,
locations and operating power of radio broadcast stations; issues, renews,
revokes and modifies radio broadcast station licenses; regulates equipment used
by radio broadcast stations; adopts and implements regulations and policies that
directly or indirectly affect the ownership, operation, program content and
54
<PAGE> 61
employment and business practices of radio broadcast stations; and has the power
to impose penalties for violations of its rules and the Communications Act.
The following is a brief summary of certain provisions of the Communications Act
and specific FCC rules and policies. Reference should be made to the
Communications Act, FCC rules, and the public notices and rulings of the FCC for
further information concerning the nature and extent of federal regulation of
radio broadcast stations.
Failure to observe these or other FCC rules and policies may result in the
imposition of various sanctions, including admonishment, monetary forfeitures,
the grant of "short" (less than the maximum eight-year term) renewal terms or,
for particularly egregious violations, the denial of a license renewal
application, the revocation of FCC licenses, or the denial of FCC consent to
acquire additional broadcast properties.
License Renewal. Radio broadcast licenses are granted for maximum terms of up to
eight years. They may be renewed through an application to the FCC, and, in
certain instances, licensees are entitled to renewal expectancies. During
certain periods when a renewal application is pending, competing applicants may
file for the radio frequency being used by the renewal applicant, although the
FCC is prohibited from considering such competing applications if the existing
license has satisfied certain obligations. Petitions to deny license renewals
can be filed by interested parties, including members of the public. The FCC is
required to hold hearings on a renewal application in certain circumstances.
The following table sets forth the date of acquisition by the Company of the
radio stations actually owned by the Company as of September 30, 1998 or would
be owned upon consummation of the Capstar/SFX Transaction, the Cleveland
Acquisitions, the Phoenix Acquisition and the Chicago Disposition, the frequency
of each such station, and the date of expiration of such station's main FCC
broadcast license:
<TABLE>
<CAPTION>
DATE OF EXPIRATION DATE
STATION MARKET(1) ACQUISITION FREQUENCY OF FCC LICENSE
------- --------- ----------- --------- ---------------
<S> <C> <C> <C> <C>
KKBT-FM................ Los Angeles, CA 5/89 92.3 MHz 12/05
KYSR-FM................ Los Angeles, CA 9/97 98.7 MHz 12/05
KBIG-FM................ Los Angeles, CA 4/98 104.3 MHz 12/05
KLAC-AM................ Los Angeles, CA 9/97 570 kHz 12/05
KCMG-FM................ Los Angeles, CA 9/97 100.3 MHz 12/05
WLTW-FM................ New York, NY 7/97 106.7 MHz 6/06
WKTU-FM................ New York, NY 5/95 103.5 MHz 6/98*
WHTZ-FM................ New York, NY 9/97 100.3 MHz 6/06
WBIX-FM................ New York, NY 4/98 105.1 MHz 6/06
WAXQ-FM................ New York, NY 7/97 104.3 MHz 6/06
WGCI-FM................ Chicago, IL 12/97 107.5 MHz 12/03
WNUA-FM................ Chicago, IL 1/96 95.5 MHz 12/03
WLIT-FM................ Chicago, IL 9/97 93.9 MHz 12/03
WVAZ-FM................ Chicago, IL 5/95 102.7 MHz 12/03
WRCX-FM................ Chicago, IL 12/93 103.5 MHz 12/03
WGCI-AM................ Chicago, IL 12/97 1390 kHz 12/03
WMVP-AM+............... Chicago, IL 5/84 1000 kHz 12/03
</TABLE>
55
<PAGE> 62
<TABLE>
<CAPTION>
DATE OF EXPIRATION DATE
STATION MARKET(1) ACQUISITION FREQUENCY OF FCC LICENSE
------- --------- ----------- --------- ---------------
<S> <C> <C> <C> <C>
KYLD-FM................ San Francisco, CA 9/97 94.9 MHz 12/05
KMEL-FM................ San Francisco, CA 11/92 106.1 MHz 12/05
KKSF-FM................ San Francisco, CA 1/97 103.7 MHz 12/05
KABL-AM................ San Francisco, CA 9/97 960 kHz 12/05
KISQ-FM................ San Francisco, CA 9/97 98.1 MHz 12/97*
KIOI-FM................ San Francisco, CA 4/94 101.3 MHz 12/05
KNEW-AM................ San Francisco, CA 9/97 910 kHz 12/05
KHKS-FM................ Dallas, TX 12/97 106.1 MHz 8/05
KZPS-FM................ Dallas, TX 10/97 92.5 MHz 8/05
KDGE-FM................ Dallas, TX 10/97 94.5 MHz 8/05
KSKY-AM................ Dallas, TX 5/95 660 kHz 8/05
KBFB-FMS............... Dallas, TX Pending 97.9 MHz 8/05
KTXQ-FMS............... Dallas, TX Pending 102.1 MHz 8/05
WDAS-FM................ Philadelphia, PA 5/97 105.3 MHz 8/06
WUSL-FM................ Philadelphia, PA 5/97 98.9 MHz 8/06
WJJZ-FM................ Philadelphia, PA 1/96 106.1 MHz 8/06
WIOQ-FM................ Philadelphia, PA 5/97 102.1 MHz 8/06
WYXR-FM................ Philadelphia, PA 1/96 104.5 MHz 8/98*
WDAS-AM................ Philadelphia, PA 5/97 1480 kHz 8/06
WMZQ-FM................ Washington, D.C. 7/97 98.7 MHz 10/03
WASH-FM................ Washington, D.C. 11/92 97.1 MHz 10/03
WBIG-FM................ Washington, D.C. 9/97 100.3 MHz 10/03
WGAY-FM................ Washington, D.C. 11/96 99.5 MHz 10/03
WTEM-AM(2)............. Washington, D.C. 4/97 980 kHz(2) 10/03
WWRC-AM(2)............. Washington, D.C. 9/97 570 kHz(2) 10/03
WWDC-FM................ Washington, D.C. 6/98 101.1 MHz 10/03
WWDC-AM................ Washington, D.C. 6/98 1260 kHz 10/03
KKBQ-FM................ Houston, TX 12/97 92.9 MHz 8/05
KLDE-FM................ Houston, TX 4/98 94.5 MHz 8/05
KLOL-FM................ Houston, TX 6/93 101.1 MHz 8/97*
KTRH-AM................ Houston, TX 6/93 740 kHz 8/05
KBME-AM................ Houston, TX 12/97 790 kHz 8/05
KODA-FM................ Houston, TX Pending 99.1 MHz 8/05
KKRW-FMS............... Houston, TX Pending 93.7 MHz 8/05
KQUE-AMS............... Houston, TX Pending 1290 kHz 8/05
WFOX-FM................ Atlanta, GA 9/97 97.1 MHz 4/03
WJMN-FM................ Boston, MA 1/96 94.5 MHz 4/06
WXKS-FM................ Boston, MA 1/96 107.9 MHz 4/06
WXKS-AM................ Boston, MA 1/96 1430 kHz 4/06
WJLB-FM................ Detroit, MI 4/97 97.9 MHz 10/03
</TABLE>
56
<PAGE> 63
<TABLE>
<CAPTION>
DATE OF EXPIRATION DATE
STATION MARKET(1) ACQUISITION FREQUENCY OF FCC LICENSE
------- --------- ----------- --------- ---------------
<S> <C> <C> <C> <C>
WNIC-FM................ Detroit, MI 5/95 100.3 MHz 10/03
WKQI-FM................ Detroit, MI 5/95 95.5 MHz 10/03
WMXD-FM................ Detroit, MI 4/97 92.3 MHz 10/03
WWWW-FM................ Detroit, MI 1/97 106.7 MHz 10/03
WDFN-AM................ Detroit, MI 1/97 1130 kHz 10/03
WYUR-AM................ Detroit, MI 5/95 1310 kHz 10/03
WEDR-FM................ Miami/Ft. Lauderdale, FL 10/96 99.1 MHz 2/03
WVCG-AM................ Miami/Ft. Lauderdale, FL 7/83 1080 kHz 2/03
KXKL-FM................ Denver, CO 9/97 105.1 MHz 4/05
KALC-FM................ Denver, CO 9/97 105.9 MHz 4/05
KIMN-FM................ Denver, CO 9/97 100.3 MHz 4/05
KXPK-FM................ Denver, CO 1/98 96.5 MHz 4/05
KVOD-FM................ Denver, CO 9/97 92.5 MHz 4/05
KRRF-AM................ Denver, CO 9/97 1280 kHz 4/05
KEEY-FM................ Minneapolis/St. Paul, MN 9/97 102.1 MHz 4/05
KDWB-FM................ Minneapolis/St. Paul, MN 9/97 101.3 MHz 4/05
KQQL-FM................ Minneapolis/St. Paul, MN 9/97 107.9 MHz 4/05
KTCZ-FM................ Minneapolis/St. Paul, MN 9/97 97.1 MHz 4/05
WRQC-FM................ Minneapolis/St. Paul, MN 9/97 100.3 MHz 4/05
KFAN-AM................ Minneapolis/St. Paul, MN 9/97 1130 kHz 4/05
KXBR-AM................ Minneapolis/St. Paul, MN 9/97 690 kHz 4/05
KOY-AM................. Phoenix, AZ 9/97 550 kHz 10/05
KMLE-FM................ Phoenix, AZ 9/97 107.9 MHz 10/05
KOOL-FM................ Phoenix, AZ 9/97 94.5 MHz 10/05
KYOT-FM................ Phoenix, AZ 9/97 95.5 MHz 10/05
KZON-FM................ Phoenix, AZ 9/97 101.5 MHz 10/05
KISO-AM................ Phoenix, AZ 9/97 1230 kHz 10/05
KFYI-AMS............... Phoenix, AZ Pending 910 kHz 10/05
KKFR-FMS............... Phoenix, AZ Pending 92.3 MHz 10/05
KYXY-FMS............... San Diego, CA Pending 96.5 MHz 12/05
KPLN-FMS............... San Diego, CA Pending 103.7 MHz 12/97*
WUBE-FM................ Cincinnati, OH 9/97 105.1 MHz 10/03
WYGY-FM................ Cincinnati, OH 9/97 96.5 MHz 10/03
WBOB-AM................ Cincinnati, OH 9/97 1160 kHz 10/03
WUBE-AM................ Cincinnati, OH 9/97 1230 kHz 10/03
WZAK-FMS............... Cleveland, OH Pending 93.1 MHz 10/03
WDOK-FMS............... Cleveland, OH Pending 102.1 MHz 10/03
WRMR-AMS............... Cleveland, OH Pending 850 kHz 10/03
WZJM-FMS............... Cleveland, OH Pending 92.3 MHz 10/03
WQAL-FMS............... Cleveland, OH Pending 104.1 MHz 10/03
</TABLE>
57
<PAGE> 64
<TABLE>
<CAPTION>
DATE OF EXPIRATION DATE
STATION MARKET(1) ACQUISITION FREQUENCY OF FCC LICENSE
------- --------- ----------- --------- ---------------
<S> <C> <C> <C> <C>
WJMO-AMS............... Cleveland, OH Pending 1490 kHz 10/03
WWSW-FM................ Pittsburgh, PA 9/97 94.5 MHz 8/06
WWSW-AM................ Pittsburgh, PA 9/97 970 kHz 8/98*
WDVE-FMS............... Pittsburgh, PA Pending 102.5 MHz 8/98*
WXDX-FMS............... Pittsburgh, PA Pending 105.9 MHz 8/98*
WJJJ-FMS............... Pittsburgh, PA Pending 104.7 MHz 8/98*
WDRV-FMS............... Pittsburgh, PA Pending 96.1 MHz 8/06
WJHM-FM................ Orlando, FL 9/97 101.9 MHz 2/03
WOCL-FM................ Orlando, FL 9/97 105.9 MHz 2/03
WXXL-FM................ Orlando, FL 9/97 106.7 MHz 2/03
WOMX-FM................ Orlando, FL 9/97 105.1 MHz 2/03
KFBK-AM................ Sacramento, CA 9/97 1530 kHz 12/05
KHYL-FM................ Sacramento, CA 9/97 101.1 MHz 12/05
KGBY-FM................ Sacramento, CA 9/97 92.5 MHz 12/05
KSTE-AM................ Sacramento, CA 9/97 650 kHz 12/05
WALK-FM................ Nassau/Suffolk
(Long Island), NY 9/97 97.5 MHz 6/98*
WALK-AM................ Nassau/Suffolk
(Long Island), NY 9/97 1370 kHz 6/06
KGGI-FM................ Riverside/San Bernardino, CA 9/97 99.1 MHz 12/05
KMRZ-AM................ Riverside/San Bernardino, CA 9/97 1290 kHz 12/05
WZNT-FM................ Puerto Rico Pending 93.7 MHz 2/04
WOYE-FM................ Puerto Rico Pending 94.1 MHz 2/04
WLDI-FM................ Puerto Rico Pending 94.7 MHz 2/04
WOQI-FM................ Puerto Rico Pending 93.3 MHz 2/04
WRPC-FM................ Puerto Rico Pending 95.1 MHz 2/04
WIOA-FM................ Puerto Rico Pending 99.9 MHz 2/04
WIOB-FM................ Puerto Rico Pending 97.5 MHz 2/04
WIOC-FM................ Puerto Rico Pending 105.1 MHz 2/04
</TABLE>
- -------------------------
* Indicates pending renewal application.
+ Indicates station to be disposed of in a pending transaction.
S Indicates station to be acquired in a pending transaction.
(1) Actual city of license may differ from metropolitan market served in
certain cases.
(2) On March 9, 1998, the Company exchanged the call signs and formats of
WWRC-AM and WTEM-AM such that beginning on such date the call sign and
format of WWRC-AM were used on the 570 kHz frequency and the call sign and
format of WTEM-AM were used on the 980 kHz frequency.
Ownership Matters. Under the Communications Act, a broadcast license may not be
granted to or held by any corporation that has more than one-fifth of its
capital stock owned or voted by aliens or their representatives, by foreign
governments or their
58
<PAGE> 65
representatives, or by non-U.S. corporations. Under the Communications Act, a
broadcast license also may not be granted to or held by any corporation that is
controlled, directly or indirectly, by any other corporation more than
one-fourth of whose capital stock is owned or voted by aliens or their
representatives, by foreign governments or their representatives, or by non-U.S.
corporations, if the FCC finds that the public interest will be served by the
refusal or revocation of such license. The Company has been advised that the FCC
staff has interpreted this provision of the Communications Act to require an
affirmative public interest finding before a broadcast license may be granted to
or held by any such corporation and that the FCC has made such an affirmative
finding only in limited circumstances. These restrictions apply in modified form
to other forms of business organizations, including partnerships. The Company,
therefore may be restricted from having more than one-fourth of its stock owned
or voted by aliens, foreign governments or non-U.S. corporations. The respective
Certificates of Incorporation of Chancellor Media and CMCLA contain prohibitions
on alien ownership and control that are intended to facilitate compliance with
the provisions of the Communications Act applicable to alien ownership. The
Company believes that in light of current levels of alien ownership of the
Company's capital stock, the foregoing restrictions are not likely to have a
material impact on Chancellor Media or CMCLA.
The Communications Act and FCC rules also generally prohibit the common
ownership, operation or control of a radio broadcast station and a television
broadcast station serving the same local market, and of a radio broadcast
station and a daily newspaper serving the same local market. Under these
"cross-ownership" rules, absent waivers, the Company would not be permitted to
acquire any daily newspaper or television broadcast station (other than
low-power television) in a local market where it then owned any radio broadcast
station. In October 1996, the Commission issued a Notice of Inquiry to explore
possible changes in the newspaper/broadcast cross-ownership waiver policy with
respect to newspaper/radio combinations, including the possibility of adopting a
waiver policy based on market size or on the number of independently owned media
in a market. In connection with the LIN Merger, the Capstar Merger and the
Pegasus Acquisition, Chancellor Media and the Company have requested or will
request certain waivers of the cross-ownership and one-to-a-market rules. The
Company expects that the FCC will grant such waivers in due course, however
there can be no assurance that this will be the result.
The Communications Act places the following limits on the numbers of stations in
the same market that can be under common ownership: in markets with 45 or more
stations, ownership is limited to eight stations, no more than five of which can
be in the same service (AM and FM each being a separate service); in markets
with 30-44 stations, ownership is limited to seven stations, no more than four
of which can be in the same service; in markets with 15-29 stations, ownership
is limited to six stations, no more than four of which can be in the same
service; and in markets with 14 or fewer stations, ownership is limited to no
more than 50% of the market's total with no more than three stations in the same
service.
Recently, the FCC has adopted a practice of including in the public notices of
certain applications a separate notice stating that the FCC intends to conduct
an analysis of the degree of market concentration that would result from a grant
of those applications, and inviting public comment on the issue of such
concentration and its effect on competition and diversity in the broadcast
markets affected. The FCC has not formally adopted changes to its rules
regarding assignments of radio licenses or limits on radio station
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ownership that reflect the factors to be used in such an analysis of market
concentration. Informally, the FCC has stated that it intends to invite such
comment when its preliminary analysis of an application reveals that, following
consummation of the assignment in question, fifty percent or more of the radio
advertising revenue generated in the market would be concentrated in stations
licensed to a single licensee, or seventy percent or more of the revenue would
be concentrated in the combined stations of any two licensees in that market.
The FCC has not thus far issued any decisions with respect to assignment
applications regarding which it has included such requests for comment, and it
is not certain what actions the FCC might take with regard to such applications,
what specific factors the FCC would rely on in taking such actions, or whether
such action by the FCC would withstand judicial review under the Communications
Act or other applicable laws. The FCC has included such a request with its
public notice of the Company's pending applications for the Cleveland
Acquisitions. Because of these multiple ownership rules and the cross-interest
policy described below, a purchaser of the Common Stock of Chancellor Media or
CMCLA who acquires an attributable interest in the Company may violate the FCC's
rules if it also has an "attributable" interest in other television or radio
stations, or in daily newspapers, depending on the number and location of those
radio or television stations or daily newspapers. Such a purchaser also may be
restricted in the companies in which it may invest, to the extent that those
investments give rise to an attributable interest. If an attributable
stockholder of the Company violates any of these ownership rules, the Company
may be unable to obtain from the FCC one or more authorizations needed to
conduct its radio station business and may be unable to obtain FCC consents for
certain future acquisitions.
The FCC generally applies its television/radio/newspaper cross-ownership rules,
and its broadcast multiple ownership rules, by considering the "attributable,"
or cognizable, interests held by a person or entity. A person or entity can have
an interest in a radio station, television station or daily newspaper by being
an officer, director, partner or stockholder of a company that owns that station
or newspaper. Whether that interest is cognizable under the FCC's ownership
rules is determined by the FCC's attribution rules. If an interest is
attributable, the FCC treats the person or entity who holds that interest as the
"owner" of the radio station, television station or daily newspaper in question,
and therefore subject to the FCC's ownership rules.
In the case of corporations, the interest of officers, directors and persons or
entities that directly or indirectly have the right to vote 5% or more of the
corporation's voting stock (or 10% or more of such stock in the case of
insurance companies, investment companies, bank trust departments and certain
other "passive investors" that hold such stock for investment purposes only) are
generally attributed with ownership of whatever radio stations, television
stations, and daily newspapers the corporation owns. Likewise, the interest of
an officer or a director of a corporate parent (as well as the corporate parent)
is generally attributed with ownership of whatever the subsidiary owns.
In the case of a partnership, the interest of a general partner is attributable,
as is the interest of any limited partner who is "materially involved" in the
media-related activities of the partnership. Debt instruments, non-voting stock,
options and warrants for voting stock that have not yet been exercised, limited
partnership interests where the limited partner is not "materially involved" in
the media-related activities of the partnership, and minority voting stock
interests in corporations where there is a single holder of more than 50% of the
outstanding voting stock, generally do not subject their holders to attribution.
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In addition to our radio broadcast and, upon the closing of the LIN Merger,
LIN's television broadcast interests, the ownership interests of certain of our
directors may be attributed to us. For example, Capstar, which Chancellor Media
has agreed to acquire and whose directors include three of our directors (Thomas
O. Hicks, Lawrence D. Stuart, Jr. and Michael J. Levitt), presently owns or
proposes to acquire over 355 radio stations serving 83 mid-sized markets
throughout the United States. Because of those directors' positions on the
Capstar board of directors, if any such broadcast interests overlap with the
Company's directly-held radio broadcast interests in the Company's markets, such
interests are combined with the Company's interests in such markets when
determining compliance with the multiple ownership rules. In addition, Hicks
Muse and four of the Company's directors (Thomas O. Hicks, Lawrence D. Stuart,
Jr., Michael J. Levitt and John H. Massey) also have attributable interests in
Sunrise, which owns or proposes to acquire a number of television stations in
several markets. Under the FCC's one-to-a-market rules, a party may not have
attributable interests in more than one television station or radio stations and
a television station in the same market unless a waiver is granted by the FCC.
As a result of these attributable interests, the Company's acquisition strategy
may be adversely affected. There can be no assurance that these attributable
interests will not have a material adverse effect on the Company's future
acquisition strategy or on the business, financial condition and results of
operations of the Company.
The FCC has issued a Notice of Proposed Rulemaking (the "NPRM") that
contemplates tightening attribution standards where parties have multiple
nonattributable interests in and relationships with stations that would be
prohibited by the FCC's cross-interest rules, if the interests/relationships
were attributable. The NPRM contemplates that this change in attribution will
apply only to persons holding debt or equity interests that exceed certain
benchmarks.
In addition, the FCC has a "cross-interest" policy that under certain
circumstances could prohibit a person or entity with an attributable interest in
a broadcast station or daily newspaper from having a "meaningful"
non-attributable interest in another broadcast station or daily newspaper in the
same local market. Among other things, "meaningful" interests could include
significant equity interests (including non-voting stock, voting stock, and
limited partnership interests) and significant employment positions. This policy
may limit the permissible investments that an equity investor in the Company may
make or hold. If the FCC determines that a stockholder of the Company has
violated this cross-interest policy, the Company may be unable to obtain from
the FCC one or more authorizations needed to conduct its radio station business
and may be unable to obtain FCC consents for certain future acquisitions.
Programming and Operation. The Communications Act requires broadcasters to serve
the "public interest." The FCC has gradually relaxed or eliminated many of the
more formalized procedures it had developed in the past to promote the broadcast
of certain types of programming responsive to the needs of a station's community
of license. A licensee continues to be required, however, to present programming
that is responsive to community problems, needs and interests and to maintain
certain records demonstrating such responsiveness. Complaints from listeners
concerning a station's programming often will be considered by the FCC when it
evaluates the licensee's renewal application, but such complaints may be filed
and considered at any time. Stations also must follow various FCC rules that
regulate, among other things, political advertising, sponsorship identification,
and technical operations (including limits on radio frequency radiation). In
addition,
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licensees must develop and implement programs designed to promote equal
employment opportunities. The broadcast of obscene and indecent material and the
advertisement of contests and lotteries are regulated by FCC rules, as well as
by state and other federal laws.
Time Brokerage Agreements. In recent years, a number of radio stations,
including certain of the Company's stations, have entered into what commonly are
referred to as "Time Brokerage Agreements," or "TBAs" (these agreements also are
known as "Local Marketing Agreements," or "LMAs"). These agreements may take
various forms. Separately-owned and licensed stations may agree to function
cooperatively in terms of programming, advertising sales, and other matters,
subject to the licensee of each station maintaining independent control over the
programming and other operations of its own station and compliance with the
requirements of antitrust laws. One typical type of TBA is a programming
agreement between two separately-owned radio stations that serve a common
service area, whereby the licensee of one station programs substantial portions
of the broadcast day on the other licensee's station (subject to ultimate
editorial and other controls being exercised by the latter licensee), and sells
advertising time during those program segments. The FCC staff has held that such
agreements do not violate the Communications Act as long as the licensee of the
station that is being substantially programmed by another entity maintains
complete responsibility for, and control over, operations of its broadcast
station and otherwise ensures compliance with applicable FCC rules and policies.
The Phoenix Acquisition and the Cleveland Acquisitions agreements provide that
certain stations being acquired will be operated pursuant to TBAs following
termination of the waiting period under the HSR Act.
A station that brokers more than 15% of the broadcast time, on a weekly basis,
on another station in the same market will be considered to have an attributable
ownership interest in the brokered station for purposes of the FCC's ownership
rules, discussed above. As a result, a broadcast station may not enter into a
TBA that allows it to program more than 15% of the broadcast time, on a weekly
basis, of another local station that it could not own under the FCC's local
multiple ownership rules. FCC rules also prohibit a broadcast licensee from
simulcasting more than 25% of its programming on another station in the same
broadcast service (i.e., AM-AM or FM-FM) where the two stations serve
substantially the same geographic area, whether the licensee owns the stations
or owns and programs the other through a TBA arrangement.
Proposed Changes. The FCC is considering various proposals to modify its
broadcast "attribution" rules. Among the proposals are (i) raising the basic
benchmark for attributing ownership from 5% to 10% of the licensee's voting
stock, (ii) raising the attribution benchmark for certain institutional
investors from 10% to 20%, (iii) limiting the applicability of the single
majority shareholder rule (discussed above) to treat as attributable large stock
interests coupled with other debt or securities and (iv) treating non-voting
stock as attributable in certain circumstances. The FCC is also considering
changes to its multiple ownership rules to encourage minority ownership of radio
and television broadcast stations.
The FCC has under consideration, and may in the future consider and adopt, new
laws, regulations and policies regarding a wide variety of matters that could,
directly or indirectly, affect the operation, ownership and financial
performance of the Company's radio broadcast stations, result in the loss of
audience share and advertising revenues for
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the Company's radio broadcast stations, and affect the ability of the Company to
acquire additional radio broadcast stations or finance such acquisitions. Such
matters include: changes to the license renewal process; the FCC's equal
employment opportunity rules and other matters relating to minority and female
involvement in the broadcasting industry; proposals to change rules relating to
political broadcasting; technical and frequency allocation matters; AM stereo
broadcasting; proposals to permit expanded use of FM translator stations;
proposals to restrict or prohibit the advertising of beer, wine and other
alcoholic beverages on radio; changes in the FCC's cross-interest, multiple
ownership and cross-ownership policies; changes to broadcast technical
requirements; proposals to allow telephone companies to deliver audio and video
programming to the home through existing phone lines; proposals to limit the tax
deductibility of advertising expenses by advertisers; proposals to auction to
the highest bidder the right to use the radio broadcast spectrum, instead of
granting FCC licenses and subsequent license renewals; and proposals to
reinstate the "Fairness Doctrine" which requires a station to present coverage
of opposing views in certain circumstances. It is also possible that Congress
may enact additional legislation that could have a material impact on the
operation, ownership and financial performance of the Company's radio stations.
The FCC has taken initial steps to authorize the use of a new technology, DARS,
to deliver audio programming by satellite. See "-- Competition." The FCC is also
considering various proposals for terrestrial DARS. DARS may provide a medium
for the delivery of multiple new audio programming formats to local and national
audiences. It is not known at this time whether this technology also may be used
in the future by existing radio broadcast stations either on existing or
alternate broadcasting frequencies.
The Company cannot predict what other matters might be considered in the future,
nor can it judge in advance what impact, if any, the implementation of any of
these proposals or changes might have on its business.
Federal Antitrust Laws. The FTC and the DOJ evaluate transactions requiring a
pre-acquisition filing under the HSR Act to determine whether those transactions
should be challenged under the federal antitrust laws. These agencies
(particularly the DOJ) recently have been increasingly active in their review of
radio station acquisitions where an operator proposes to acquire new stations in
its existing markets.
As part of its increased scrutiny of radio station acquisitions, the DOJ has
stated publicly that it believes that TBAs and other similar agreements
customarily entered into in connection with radio station transfers prior to the
expiration of the waiting period under the HSR Act could violate the HSR Act.
Since then, the DOJ has stated publicly that it will apply its new policy
prohibiting TBAs in connection with purchase agreements until the expiration or
termination of the HSR waiting period on a prospective basis.
The DOJ has stated publicly that it has established certain revenue and audience
share concentration benchmarks with respect to radio station acquisitions, above
which a transaction may receive additional antitrust scrutiny. However, to date,
the DOJ has also investigated transactions that do not meet or exceed these
benchmarks, and has cleared transactions that do exceed these benchmarks.
Although the Company does not believe that its acquisition strategy as a whole
will be adversely affected in any material respect by antitrust review
(including review under the HSR Act) or by additional divestitures that the
Company may have to make as a result of antitrust review, there can be no
assurance that this will be the case. In addition, on June 3, 1998, the DOJ
issued a second request
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for additional information under the HSR Act in connection with the Petry
Acquisition. The Company is presently responding to this request for additional
information. There can be no assurance that the DOJ will not attempt to enjoin
or modify the proposed transaction, and, accordingly, that the Petry Acquisition
will be consummated in accordance with its terms or at all.
OUTDOOR ADVERTISING
The outdoor advertising industry is subject to governmental regulation at the
federal, state and local level. Federal law, principally the Highway
Beautification Act of 1965, encourages states, by the threat of withholding 10%
of the federal appropriations for the construction and improvement of highways
within such states, to implement legislation to prohibit billboards located
within 660 feet of, or visible from, interstate and primary highways except in
commercial or industrial areas where off-site signage is permitted provided it
meets spacing and size restrictions. All of the states have implemented
regulations at least as restrictive as the Highway Beautification Act, including
the prohibition on the construction of new billboards adjacent to
federally-aided highways and the removal at the owner's expense and without any
compensation of any illegal signs on such highways. The Highway Beautification
Act, and the various state statutes implementing it, require the payment of just
compensation whenever governmental authorities require legally erected and
maintained billboards to be removed from areas adjacent to federally-aided
highways.
The states and local jurisdictions have, in some cases, passed additional and
more restrictive regulations which limit the construction, repair, upgrading,
height, size, location and/or operation of outdoor advertising structures. Such
regulations, often in the form of municipal building, sign or zoning ordinances,
specify minimum standards for the height, size and location of billboards. In
some cases, the construction of new billboards or relocation of existing
billboards is prohibited. Some jurisdictions also have restricted the ability to
enlarge or upgrade existing billboards, such as converting from wood to steel or
from nonilluminated to illuminated structures, and/or restrict the
reconstruction or repair of billboards which are substantially destroyed as a
result of storms or other causes. From time to time, governmental authorities
order the removal of billboards by the exercise of eminent domain. Thus far, the
Company believes it has been able to obtain satisfactory compensation for any of
its structures removed at the direction of governmental authorities, although
there is no assurance that it will be able to continue to do so in the future.
Amortization of billboards has also been adopted in varying forms in certain
jurisdictions. In theory, amortization permits the billboard owner to operate
its billboard as a non-conforming use for a specified period of time until it
has recouped its investment, after which it must remove or otherwise conform its
billboard to the applicable regulations at its own cost without any
compensation. Amortization and other regulations requiring the removal of
billboards without compensation have been subject to vigorous litigation in the
state and federal courts and cases have reached differing conclusions as to the
constitutionality of these regulations. Several municipalities in the Company's
markets currently have amortization ordinances or regulations. Ordinances
requiring the removal of a billboard without compensation, whether through
amortization or otherwise, are being challenged in various state and federal
courts with conflicting results. In some cities, amortization ordinances or
regulations are not being enforced or have been held unconstitutional. However,
no assurance can be given as to the effect on the Company of
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the enforcement of existing laws or regulations, or of new laws and regulations
that may be adopted in the future.
In recent years, there have been efforts to restrict billboard advertising of
certain products, including tobacco and alcohol. Congress has passed no
legislation at the federal level except legislation requiring health hazard
warnings similar to those on cigarette packages and print advertisements. In
1996, the Food and Drug Administration promulgated rules which, among other
things, would limit certain types of outdoor advertising by tobacco companies.
While certain of these regulations have been declared invalid by a lower court
ruling, appeals are likely and there can be no assurance that further
developments resulting in a validation or implementation of these or similar
regulations will not occur. Outdoor advertising of tobacco products also may be
affected by city or state regulations. For example, in 1995, the Court of
Appeals for the Fourth Circuit upheld the validity of a Baltimore city ordinance
restricting the placement of outdoor advertisements of cigarettes and alcohol in
publicly visible locations, such as billboards, signboards and sides of
buildings. Subsequently, the United States Supreme Court declined to review an
appeal of the case. Restrictions similar to the Baltimore ordinance are also
being contemplated or introduced in other states or municipalities around the
country, including New Jersey, New York City and Los Angeles. There can be no
assurance that additional local or state governments will not enact similar
ordinances or statutes to limit outdoor advertising of tobacco in the future in
markets in which the Company operates. Certain states in which the Company
operates have historically prohibited the outdoor advertising of distilled
spirits. In California, transit shelter advertising posters are maintained on
public rights of way, and most of the contracts prohibit tobacco and/or alcohol
advertising. San Francisco has adopted an ordinance banning all tobacco and
alcohol advertising on public property, but has "grandfathered" existing sales
contracts through 2002. For each of the past three years, the California
legislature has considered proposed legislation which would ban, or
substantially limit, all outdoor advertising of tobacco. While that legislation
has not been passed, the proponents have publicly stated they will continue to
attempt to have such proposal enacted. It is uncertain whether additional
legislation of this type will be enacted on the national level or in any of the
markets in which the Company operates.
It also recently has been reported that certain cigarette manufacturers who are
defendants in numerous class action suits throughout the United States have
reached agreement with Attorneys General of various states for an out of court
settlement with respect to such suits that would, among other things, prohibit
outdoor advertising by the tobacco industry. The settlement is subject to
various conditions including approval and implementing legislation by the United
States Congress. There can be no assurance as to the effect of this settlement
agreement and potential legislation on the Company's business and on its net
revenues and financial position. A reduction in billboard advertising by the
tobacco industry would cause an immediate reduction in the Company's direct
revenue from such advertisers and would simultaneously increase the available
space on the existing inventory of billboards in the outdoor advertising
industry. This could in turn result in a lowering of outdoor advertising rates
in each of the Company's outdoor advertising markets or limit the ability of
industry participants to increase rates for some period of time. Any such
consequence could have a material adverse effect on the Company.
To date, regulations in the Company's markets have not materially adversely
affected its operations. However, the outdoor advertising industry is heavily
regulated and at various times and in various markets can be expected to be
subject to varying degrees of
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regulatory pressure affecting the operation of advertising displays.
Accordingly, although the Company's experience to date is that the regulatory
environment can be managed, no assurance can be given that existing or future
laws or regulations will not materially adversely affect the Company. See "Risk
Factors -- Regulation of Outdoor Advertising."
EMPLOYEES
The Company has approximately 5,200 full-time employees and approximately 850
part-time employees. Certain of the Company's employees in New York, Los
Angeles, Chicago, San Francisco, Washington, D.C., Philadelphia, Detroit,
Pittsburgh and Cincinnati (approximately 360 employees) are represented by
unions. The Company believes that it has good relations with its employees and
these unions.
The Company employs several high-profile on-air personalities who have large,
loyal audiences in their respective markets. The Company believes that its
relationships with its on-air talent are valuable, and it generally enters into
employment agreements with these individuals.
PROPERTIES
The Company's corporate headquarters is in Dallas, Texas. The types of
properties required to support each of the Company's existing or to be acquired
radio stations include offices, studios, transmitter sites and antenna sites. A
radio station's studio is generally housed with its office in a downtown or
business district. A station's transmitter sites and antenna sites generally are
located in a manner that provides maximum market coverage.
The studios and offices of the Company's radio stations and its corporate
headquarters are located in leased or owned facilities. The terms of these
leases expire generally in one to ten years. The Company either owns or leases
its transmitter and antenna sites. These leases have expiration dates that range
generally from one to eight years.
The Company does not anticipate any difficulties in renewing those leases that
expire within the next several years or in leasing other space, if required.
Katz operates out of approximately 54 separate locations throughout the United
States.
Martin Media operates out of approximately 19 separate locations throughout the
United States.
No one property is material to the Company's overall operations. The Company
believes that its properties are in good condition and suitable for its
operations. The Company owns substantially all of the equipment used in its
radio broadcasting business.
LEGAL PROCEEDINGS
In July 1998, a stockholder derivative action was commenced in the Delaware
Court of Chancery by a stockholder purporting to act on behalf of Chancellor
Media. The defendants in the case include Hicks Muse, LIN and certain of
Chancellor Media's directors. The plaintiff alleges that Chancellor Media has
agreed to acquire LIN at too high of a price and that the transaction therefore
constitutes a breach of fiduciary duty and a waste of corporate assets by Hicks
Muse (which is alleged to control Chancellor Media) and the directors of
Chancellor Media named as defendants. The plaintiff seeks to enjoin consummation
or rescission of the transaction, compensatory damages, an order requiring
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that the directors named as defendants "carry out their fiduciary duties," and
attorneys' fees and other costs. The Company believes that the lawsuit is
without merit and intends to vigorously defend the action.
In September 1998, a stockholder class action complaint was filed in the
Delaware Court of Chancery by a stockholder purporting to act individually and
on behalf of all other persons (other than defendants) who own securities of
Chancellor Media and are similarly situated. The defendants in the case are
named as Chancellor Media, Hicks Muse, Thomas O. Hicks, Jeffrey A. Marcus, James
E. de Castro, Eric C. Neuman, Lawrence D. Stuart, Jr., Steven Dinetz, Thomas J.
Hodson, Perry Lewis, John H. Massey and Vernon E. Jordan, Jr. The plaintiff
alleges breach of fiduciary duties, gross mismanagement, gross negligence or
recklessness, and other matters relating to the defendants' actions in
connection with the proposed Capstar Merger. The plaintiff seeks to certify the
complaint as a class action, enjoin consummation of the Capstar Merger, order
defendants to account to plaintiff and other alleged class members for damages,
and award attorneys' fees and other costs. The Company believes that the lawsuit
is without merit and intends to vigorously defend the action.
The Company is also involved in various other claims and lawsuits which are
generally incidental to its business. The Company is vigorously contesting all
such matters and believes that their ultimate resolution will not have a
material adverse effect on its consolidated financial position or results of
operations.
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MANAGEMENT AND BOARD OF DIRECTORS
The directors and executive officers of Chancellor Media, CMHC and the Company
are:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Thomas O. Hicks........................... 52 Chairman of the Board and Director
Jeffrey A. Marcus......................... 51 President, Chief Executive Officer and
Director
James E. de Castro........................ 45 President of Chancellor Radio Group and
Director
Matthew E. Devine......................... 49 Senior Vice President and Chief
Financial Officer
Eric C. Neuman............................ 52 Senior Vice President -- Strategic
Development
James A. McLaughlin....................... 48 President of Chancellor Outdoor Group
Kenneth J. O'Keefe........................ 43 Executive Vice President -- Operations
Thomas J. Hodson.......................... 54 Director
Perry J. Lewis............................ 59 Director
John H. Massey............................ 57 Director
Lawrence D. Stuart, Jr.................... 52 Director
Steven Dinetz............................. 51 Director
Vernon E. Jordan, Jr...................... 62 Director
J. Otis Winters........................... 65 Director
Michael J. Levitt......................... 39 Director
</TABLE>
THOMAS O. HICKS
Mr. Hicks was elected Chairman of the Board and a director of Chancellor Media,
CMHC and the Company upon the consummation of the Chancellor Merger. He had been
Chairman and a director of Chancellor and CRBC prior to the Chancellor Merger,
since April 1996. Mr. Hicks is Chairman of the Board and Chief Executive Officer
of Hicks Muse, a private investment firm located in Dallas, St. Louis, New York,
Mexico City and London specializing in strategic investments, leveraged
acquisitions and recapitalizations. From 1984 to May 1989, Mr. Hicks was
Co-Chairman of the Board and Co-Chief Executive Officer of Hicks & Haas,
Incorporated, a Dallas based private investment firm. Mr. Hicks serves as a
director of Capstar, Sybron International Corporation, Inc., Cooperative
Computing, Inc., International Home Foods, Triton Energy, D.A.C. Vision Inc. and
Olympus Real Estate Corporation.
JEFFREY A. MARCUS
Mr. Marcus became the President and Chief Executive Officer of Chancellor Media,
CMHC and the Company on June 1, 1998, and Mr. Marcus became a director of
Chancellor Media, CMHC and the Company upon consummation of the Chancellor
Merger. Prior to the Chancellor Merger, Mr. Marcus served as a director of
Chancellor and CRBC. Prior to joining the Company on June 1, 1998, Mr. Marcus
served as the Chairman and Chief Executive Officer of Marcus Cable Properties,
Inc. and Marcus Cable Company, L.L.C. (collectively "Marcus Cable"), the ninth
largest cable television multiple system operator (MSO) in the United States,
which Mr. Marcus formed in 1990.
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Mr. Marcus continues to serve as Chairman of Marcus Cable and as a director of
Marcus Cable Properties, Inc. until November 1988, Mr. Marcus served as Chairman
and Chief Executive Officer of WestMarc Communications, Inc., an MSO formed
through the merger in 1987 of Marcus Communications, Inc. and Western
TeleCommunications, Inc. Mr. Marcus has more than 29 years experience in the
cable television business. Mr. Marcus is a co-owner of the Texas Rangers
Baseball Club and serves as a director of Brinker International, Inc. and a
director or trustee of several charitable and civic organizations.
JAMES E. DE CASTRO
Mr. de Castro served as Chief Operating Officer of Chancellor Media, CMHC and
the Company from September 22, 1997 to August 19, 1998, and on August 19, 1998,
Mr. de Castro was named President of Chancellor Radio Group. From September 5,
1997 to September 22, 1997, Mr. de Castro served as Co-Chief Operating Officer
of Chancellor Media, CMHC and the Company. Mr. de Castro was elected Co-Chief
Operating Officer and a director of Chancellor Media, CMHC and the Company upon
the consummation of the Chancellor Merger. Mr. de Castro was previously
President of Evergreen since 1993 and Chief Operating Officer and a director of
Evergreen since 1989. From 1987 to 1988, Mr. de Castro held various positions
with H&G Communications, Inc. and predecessor entities. From 1981 to 1989, Mr.
de Castro was general manager of radio stations WLUP-FM and WLUP-AM (now known
as WMVP-AM) in Chicago, and from 1989 to 1992, Mr. de Castro was general manager
of radio station KKBT-FM in Los Angeles.
MATTHEW E. DEVINE
Mr. Devine became Senior Vice President and Chief Financial Officer of
Chancellor Media, CMHC and the Company upon consummation of the Chancellor
Merger. Prior thereto, Mr. Devine had been an Executive Vice President of
Evergreen since 1993, Chief Financial Officer, Treasurer and Secretary of
Evergreen since 1988 and a director of Evergreen from 1989 through the
Chancellor Merger.
ERIC C. NEUMAN
Mr. Neuman became a Senior Vice President -- Strategic Development of Chancellor
Media and the Company on July 1, 1998. From September 5, 1997 to May 19, 1998,
Mr. Neuman served as a director of Chancellor Media, CMHC and the Company. Mr.
Neuman became a director of Chancellor Media, CMHC and the Company upon
consummation of the Chancellor Merger. Mr. Neuman previously served as a
director of Chancellor and CRBC since April 1996. From May 1993 to July 1, 1998,
Mr. Neuman had been an officer of Hicks Muse and was most recently serving as
Senior Vice President. From 1985 to 1993, Mr. Neuman was a Managing General
Partner of Communications Partners, Ltd., a private investment firm specializing
in media and communications businesses. Mr. Neuman currently serves as a
director of Capstar.
JAMES A. MCLAUGHLIN
Mr. McLaughlin became the President of Chancellor Outdoor Group effective on
August 18, 1998. Mr. Laughlin most recently served as Chief Executive Officer of
privately-held Triumph Outdoor Holdings, LLC. Prior to forming Triumph, Mr.
McLaughlin served as President and Chief Executive Officer of POA Acquisition
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<PAGE> 76
Corporation, the successor to Peterson Outdoor Advertising. Prior to joining
POA, Mr. McLaughlin was the Managing Partner of Turner Outdoor Advertising which
was purchased from Ted Turner in 1983. Mr. McLaughlin began his outdoor
advertising career in 1974 with Creative Displays, holding various management
positions as the company grew to become the fourth largest outdoor advertising
company in the United States.
KENNETH J. O'KEEFE
Mr. O'Keefe became an Executive Vice President of Chancellor Media, CMHC and the
Company upon the consummation of the Chancellor Merger. Mr. O'Keefe had been an
Executive Vice President of Evergreen since February of 1996 and served as a
director of Evergreen from May of 1996 until the consummation of the Chancellor
Merger. Prior to joining Evergreen in 1996, Mr. O'Keefe was a director, Chief
Financial Officer and Executive Vice President of Pyramid Communications, Inc.
from March 1994 until Evergreen's acquisition of Pyramid Communications, Inc. on
January 17, 1996. Mr. O'Keefe served in various capacities with Pyramid
Communications, Inc. or predecessor entities during the five-year period prior
to his joining Evergreen in 1996.
THOMAS J. HODSON
Mr. Hodson became a director of Chancellor Media, CMHC and the Company upon
consummation of the Chancellor Merger. Mr. Hodson had previously served as a
director of Evergreen since 1992. Mr. Hodson is President of TJH Capital, Inc.,
a private investment company. He had been the President and a director of
Columbia Falls Aluminum Company from January 1994 to March 1998. He had been a
Vice President of Stephens, Inc. from 1986 through 1993.
PERRY J. LEWIS
Mr. Lewis became a director of Chancellor Media, CMHC and the Company upon
consummation of the Chancellor Merger. Mr. Lewis had previously served as a
director of Evergreen since Evergreen acquired Broadcasting Partners, Inc.
("BPI") in 1995. Mr. Lewis was the Chairman of BPI from its inception in 1988
until its merger with Evergreen, and was Chief Executive Officer of BPI from
1993 to 1995. Mr. Lewis is a founder of Morgan, Lewis, Githens & Ahn, an
investment banking and leveraged buyout firm which was established in 1982. Mr.
Lewis serves as director of Aon Corporation, ITI Technologies, Inc., Gradall
Industries, Inc. and Stuart Entertainment, Inc.
JOHN H. MASSEY
Mr. Massey became a director of Chancellor Media, CMHC and the Company upon
consummation of the Chancellor Merger. Prior to the Chancellor Merger, Mr.
Massey served as a director of Chancellor and CRBC. Until August 2, 1996, Mr.
Massey served as the Chairman of the Board and Chief Executive Officer of Life
Partners Group, Inc., an insurance holding company, having assumed those offices
in October 1994. Prior to joining Life Partners, he served, since 1992, as the
Chairman of the Board of, and currently serves as a director of, FSW Holdings,
Inc. Since 1986, Mr. Massey has served as a director of Gulf-California
Broadcast Company. From 1986 to 1992, he also was President of Gulf-California
Broadcast Company. From 1976 to 1986, Mr. Massey was President of Gulf Broadcast
Company. Mr. Massey currently serves as a director of Central Texas Bankshare
Holdings, Inc., Colorado Investment Holdings, Inc., Hill Bancshares Holdings,
Inc., Bank
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of The Southwest of Dallas, Texas, Columbus State Bank, Columbine JDS Systems,
Inc., The Paragon Group, Inc., the Brazos Fund Group Inc. and Sunrise Television
Group, Inc.
LAWRENCE D. STUART, JR.
Mr. Stuart became a director of Chancellor Media, CMHC and the Company upon
consummation of the Chancellor Merger. Mr. Stuart previously served as a
director of Chancellor and CRBC since January 1997. Since October 1995, Mr.
Stuart has served as a Managing Director and Principal of Hicks Muse. Prior to
joining Hicks Muse, from 1990 to 1995 he served as the managing partner of the
Dallas office of the law firm Weil, Gotshal & Manges LLP. Mr. Stuart serves as a
director of Capstar.
STEVEN DINETZ
Mr. Dinetz was elected Co-Chief Operating Officer and a director of Chancellor
Media, CMHC and the Company upon the consummation of the Chancellor Merger. As
of September 22, 1997, Mr. Dinetz no longer serves as Co-Chief Operating Officer
of Chancellor Media, CMHC and the Company, but continues to serve as a director
for each such entity. Prior to consummation of the Chancellor Merger, Mr. Dinetz
served as President, Chief Executive Officer and a director of Chancellor and
CRBC since their formation and prior thereto was the President and Chief
Executive Officer and a director of Chancellor Communications, a predecessor
entity of Chancellor.
VERNON E. JORDAN, JR.
Mr. Jordan became a director of Chancellor Media, CMHC and the Company on
October 14, 1997. Mr. Jordan currently serves as a senior partner in the
Washington, D.C. office of the law firm of Akin, Gump, Strauss, Hauer & Feld,
L.L.P. Mr. Jordan serves as a director of American Express Company, Bankers
Trust Company, Bankers Trust New York Corporation, Dow Jones & Company, Inc.,
the Ford Foundation, Howard University, J.C. Penney Company, Inc., Revlon Group,
Revlon, Inc., Ryder System, Inc., Sara Lee Corporation, Union Carbide
Corporation, Xerox Corporation, LBJ Foundation, National Academy Foundation and
the Roy Wilkins Foundation.
J. OTIS WINTERS
Mr. Winters became a director of Chancellor Media, CMHC and the Company on May
19, 1998. Mr. Winters currently serves as the non-executive Chairman for The PWS
Group (formerly Pate, Winters & Stone, Inc.). Mr. Winters was Co-founder,
President and director of Avanti Energy Corporation. Mr. Winters also served as
Executive Vice President and a member of the board of directors of the First
National Bank and Trust Company of Tulsa. Mr. Winters was Executive Vice
President and a member of the board of directors of The Williams Companies,
where he served as Chairman of two major subsidiaries and was responsible for
the corporate administrative department. Mr. Winters also serves as a director
and Chairman of the audit and compensation committee of AMX Corporation,
director and Chairman of the audit committee for Arena Brands, Inc., director
and Chairman of the finance and audit committees for Dynegy, Inc. (formerly NGC
Corporation), director for OmniAmerica, Inc. and director and Chairman of the
executive committee for Walden Residential Properties, Inc.
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<PAGE> 78
MICHAEL J. LEVITT
Michael J. Levitt became a director of Chancellor Media, CMHC and the Company on
May 19, 1998. Mr. Levitt is a Managing Director and Principal of Hicks Muse.
Before joining Hicks Muse, Mr. Levitt was a Managing Director and Deputy Head of
Investment Banking with Smith Barney Inc. from 1993 through 1995. From 1986
through 1993, Mr. Levitt was with Morgan Stanley & Co. Incorporated, most
recently as a Managing Director responsible for the New York-based Financial
Entrepreneurs Group. Mr. Levitt also serves as a director of LIN Television
Corporation, Capstar, STC Broadcasting, Inc., Atrium Companies, Inc. and
International Home Foods, Inc.
COMPENSATION OF DIRECTORS
Directors who are also officers of Chancellor Media, CMHC and the Company
receive no additional compensation for their services as directors. Effective
following the Chancellor Merger, directors of Chancellor Media, CMHC and the
Company who are not officers receive (i) a fee of $36,000 per annum, (ii) a
$1,000 fee for attendance at meetings or, if applicable, a $500 fee for
attendance at meetings by telephone and (iii) a $2,000 fee for service as
chairman of a board committee, a $1,000 fee for attendance at committee meetings
or, if applicable, a $500 fee for attendance at committee meetings by telephone.
Directors of Chancellor Media, CMHC and the Company are also reimbursed for
travel expenses and other out-of-pocket costs incurred in connection with such
meetings. Additionally, all non-employee directors of Chancellor Media, CMHC and
the Company in office on the day of Chancellor Media's annual stockholders
meeting are entitled to an award of options to purchase 25,000 shares of Common
Stock at an exercise price equal to the fair market value of such shares on the
date of grant.
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COMPENSATION OF EXECUTIVE OFFICERS
Summary Compensation. The following table sets forth all compensation, including
bonuses, stock option awards and other payments, paid or accrued by the Company
for the three fiscal years ending December 31, 1997, to the Company's Chief
Executive Officer and each of the Company's other executive officers serving in
such capacity at the end of the last completed fiscal year whose total annual
salary and bonus exceeded $100,000 during the fiscal year ended December 31,
1997.
SUMMARY COMPENSATION TABLE(1)
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG TERM
---------------------------------------- COMPENSATION
OTHER ------------ SECURITIES
NAME AND ANNUAL RESTRICTED UNDERLYING LTIP
PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION(2) STOCK AWARDS OPTIONS PAYOUTS
------------------ ---- -------- ---------- --------------- ------------ ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Scott K. Ginsburg........... 1997 $850,000 $3,615,000 -- -- 500,000 --
Former President 1996 750,000 956,000 -- -- 375,000 --
and Chief 1995 650,000 -- -- -- --
Executive Officer
James E. de Castro.......... 1997 $825,000 $2,581,000 -- -- 425,000 --
Chief Operating 1996 750,000 704,000 -- -- 75,000 --
Officer 1995 650,000 125,000 -- -- 300,000 --
Matthew E. Devine........... 1997 $375,000 $1,205,000 -- -- 262,500 --
Senior Vice 1996 300,000 352,000 -- -- 37,500 --
President, 1995 275,000 63,000 -- -- 150,000 --
Chief Financial
Officer and
Secretary
Kenneth J. O'Keefe.......... 1997 $320,000 $1,205,000 -- -- -- --
Executive Vice 1996 210,000(4) 210,000 -- -- 300,000 --
President- 1995 -- -- -- -- -- --
Operations
<CAPTION>
NAME AND ALL OTHER
PRINCIPAL POSITION COMPENSATION(3)
------------------ ---------------
<S> <C>
Scott K. Ginsburg........... $9,101
Former President 9,776
and Chief 7,663
Executive Officer
James E. de Castro.......... 2,630
Chief Operating 2,455
Officer 2,455
Matthew E. Devine........... --
Senior Vice --
President, --
Chief Financial
Officer and
Secretary
Kenneth J. O'Keefe.......... --
Executive Vice --
President- --
Operations
</TABLE>
- -------------------------
(1) No information is set forth herein regarding Steven Dinetz, who served as
the Company's Co-Chief Operating Officer from September 5, 1997 through
September 22, 1997, as amounts paid by the Company to Mr. Dinetz during 1997
for total annual salary and bonus did not exceed $100,000. On September 22,
1997, as part of the Chancellor Merger, Mr. Dinetz resigned from his
position as Co-Chief Operating Officer of the Company, but retained his
position as a director of the Company. Upon Mr. Dinetz' resignation, the
Company accelerated the exercisability of all of Mr. Dinetz' stock options
previously granted by Chancellor Broadcasting Company. In February 1998, the
Company made certain additional cash payments to Mr. Dinetz. Both the
acceleration of the exercisability of the stock options and the cash payment
were part of Mr. Dinetz' severance package which he elected to receive after
a change in job responsibilities directly related to the Chancellor Merger.
(2) The aggregate annual amount of perquisites and other personal benefits,
securities or property does not exceed $50,000 or 10% of the total of the
annual salary and bonus for the named officer.
(3) Represents payments of term life insurance policies.
(4) Represents compensation for the period beginning March 1, 1996, when Mr.
O'Keefe joined the Company.
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<PAGE> 80
Option Grants in Last Fiscal Year. The following table sets forth information
regarding options to purchase Common Stock granted by the Company to its Chief
Executive Officer and the other executive officers named in the Summary
Compensation Table during the 1997 fiscal year.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
----------------------------------------
NUMBER OF
SECURITIES % OF TOTAL GRANT DATE VALUE
UNDERLYING OPTIONS --------------------------
OPTIONS GRANTED TO EXERCISE OR GRANT DATE
GRANTED EMPLOYEES IN BASE PRICE EXPIRATION PRESENT VALUE
NAME (#)(1)(2) FISCAL YEAR ($/SHARE)(2) DATE $(3)
---- ---------- ------------ ------------ ---------- -------------
<S> <C> <C> <C> <C> <C>
Scott K. Ginsburg....... 500,000 8.0% $23.25 9/5/07 $6,155,000
James E. de Castro...... 425,000 6.8% 23.25 9/5/07 5,231,750
Matthew E. Devine....... 262,500 4.2% 23.25 9/5/07 3,231,375
Kenneth J. O'Keefe...... -- -- -- -- --
</TABLE>
- -------------------------
(1) Represents options to purchase shares of Common Stock granted under the
Company's 1995 Stock Option Plan for Executive Officers and Key Employees
(the "1995 Stock Option Plan"). The options awarded to Mr. Ginsburg, Mr. de
Castro and Mr. Devine during the last fiscal year are exercisable in whole
or part beginning on September 5, 1997, and expire on September 5, 2007. The
options may expire earlier upon the occurrence of certain merger or
consolidation transactions involving the Company. The Company is not
required to issue and deliver any certificate for shares of Common Stock
purchased upon exercise of the option or any portion thereof prior to
fulfillment of certain conditions, including the completion of registration
or qualification of such shares of Common Stock under federal or state
securities laws and the payment to the Company of all amounts required to be
withheld upon exercise of the options under any federal, state or local tax
law. The holder of an option has no rights or privileges of a stockholder in
respect of any shares of Common Stock purchasable upon exercise of the
options unless and until certificates representing such shares shall have
been issued by the Company to such holder. Once exercisable, the options are
exercisable by the holder or, upon the death of such holder, by his personal
representatives or by any person empowered to do so under such holder's will
or under the applicable laws of descent and distribution. The options are
not transferable except by will or by the applicable laws of descent and
distribution or pursuant to a QDRO.
(2) Represents the estimated fair value of Common Stock on September 5, 1997,
the date of grant, as adjusted for the two-for-one stock split of the
Company's Common Stock effected in the form of a stock dividend, paid on
January 12, 1998.
(3) The present value of each grant is estimated on the date of grant using the
Black-Scholes option pricing model with the following weighted average
assumptions: dividend yield of 0% for all years; expected volatility of
41.88%; risk-free interest rate of 5.38%, and expected life of seven years.
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<PAGE> 81
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND YEAR-END VALUES
The following table sets forth information concerning option exercises in the
year ended December 31, 1997 by the Company's Chief Executive Officer and the
other executive officers named in the Summary Compensation Table, and the value
of each such executive officer's unexercised options at December 31, 1997.
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS
SHARES AT FISCAL YEAR-END(#) AT FISCAL YEAR-END($)(1)
ACQUIRED ON VALUE --------------------------- ---------------------------
EXERCISE(#) REALIZED($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Scott K. Ginsburg....... -- -- 500,000 375,000 7,034,000 9,873,000
James E. de Castro...... 300,000 6,979,000 1,220,000 375,000 34,830,250 9,873,000
Matthew E. Devine....... -- -- 562,500 187,500 14,082,000 4,936,500
Kenneth J. O'Keefe...... -- -- -- 300,000 -- 7,992,000
</TABLE>
- -------------------------
(1) Based upon a per share price for Common Stock of $37.31. This price
represents the closing price for the Common Stock on the Nasdaq National
Market System on December 31, 1997, as adjusted for the two-for-one stock
split of the Company's Common Stock, effected in the form of a stock
dividend, paid on January 12, 1998.
EMPLOYMENT AGREEMENTS
GINSBURG EMPLOYMENT AGREEMENT
Prior to April 14, 1998, Scott K. Ginsburg served as the President and Chief
Executive Officer of Chancellor Media, CMHC and CMCLA. On September 4, 1997, the
Company entered into a new employment agreement (the "Ginsburg Employment
Agreement") with Mr. Ginsburg, to be effective on the closing date of the
Chancellor Merger. The Ginsburg Employment Agreement, which had a term that
extends through September 5, 2002, provided for an initial annual base salary of
$1,000,000 for the first year of the employment agreement, to be increased each
year by a percentage equal to the percentage change in the consumer price index
during the preceding year. In addition, the Ginsburg Employment Agreement
provided for an annual bonus based upon the financial performance of the Company
in relation to certain annual performance targets which are defined in the
Ginsburg Employment Agreement. The Ginsburg Employment Agreement provided that,
on the closing date of the Chancellor Merger and on each of the first four
anniversaries thereof on which Mr. Ginsburg remained employed by the Company,
Mr. Ginsburg would be granted options to purchase 200,000 shares of Common
Stock. If Mr. Ginsburg's employment was terminated without "cause" (as defined
in the Ginsburg Employment Agreement) or if Mr. Ginsburg terminated his
employment for "good reason" (as defined in the Ginsburg Employment Agreement)
prior to the fifth annual anniversary of the consummation of the Chancellor
Merger, Mr. Ginsburg would receive on such termination date a number of options
equal to 1,000,000 minus the number of options previously granted to Mr.
Ginsburg pursuant to the preceding sentence prior to such date. In addition, in
recognition of Mr. Ginsburg's rights under his prior employment agreement, the
Company granted Mr. Ginsburg an option to acquire an additional 300,000 shares
of Common Stock on the closing date of the Chancellor Merger. The Ginsburg
Employment Agreement provided that all options granted pursuant to the Ginsburg
Employment Agreement would be exercisable for ten years from the date of grant
of the option (notwithstanding any termination of employment), at a price per
share equal to the
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market price for Common Stock at the close of trading on the day immediately
preceding the date of the grant. The Ginsburg Employment Agreement provided
that, in the event of termination of Mr. Ginsburg's employment by the Company
without "cause" or by Mr. Ginsburg with "good reason," the Company would make a
one-time cash payment to Mr. Ginsburg in a gross amount such that the net
payments retained by Mr. Ginsburg shall equal $20,000,000. The Ginsburg
Employment Agreement further provided that, in the event of termination of Mr.
Ginsburg's employment by reason of expiration or non-renewal of the Ginsburg
Employment Agreement, the Company would make a one-time cash payment to Mr.
Ginsburg equal to two times the amount of his annual base salary for the
contract year in which his employment terminates. The Ginsburg Employment
Agreement provided that Mr. Ginsburg would have registration rights with respect
to all Common Stock acquired by Mr. Ginsburg at any time which rights were no
less favorable to Mr. Ginsburg as the registration rights held by Hicks Muse and
its affiliates with respect to the common stock of Chancellor immediately prior
to the consummation of the Chancellor Merger. Under the Ginsburg Employment
Agreement, the Company also agreed to make to Mr. Ginsburg a ten-year unsecured
loan in the amount of $3,500,000 bearing interest at a fixed rate equal to the
applicable Federal long-term rate in effect on the date on which the loan is
made. The terms of the loan require Mr. Ginsburg to repay principal of the loan
in five equal annual installments, commencing on the sixth anniversary of the
date on which the loan is made. As of April 15, 1998, Mr. Ginsburg has borrowed
$3,500,000 under the loan.
On April 14, 1998, Mr. Ginsburg resigned as President and Chief Executive
Officer of Chancellor Media, CMHC and CMCLA, and on April 20, 1998, Mr. Ginsburg
resigned as director of Chancellor Media, CMHC and CMCLA and from all
appointments and positions with their respective subsidiaries. On April 20, 1998
(the "Agreement Date"), the Company entered into a separation and consulting
agreement (the "Ginsburg Separation and Consulting Agreement") with Mr.
Ginsburg. The Ginsburg Separation and Consulting Agreement, provides for (a) a
lump sum severance payment of $20,000,000 net of applicable employee withholding
taxes, which is the same amount Mr. Ginsburg would have been entitled to under
the Ginsburg Employment Agreement based upon a termination of his employment by
him for "good reason" or by the Company "without cause," and (b) a grant to Mr.
Ginsburg of stock options to acquire 800,000 shares of Common Stock of
Chancellor Media, subject to the approval of Chancellor Media's stockholders (at
the 1998 annual meeting of stockholders) of a 1998 Chancellor Media Corporation
Employee Stock Option Plan, which is the same number of stock options to which
Mr. Ginsburg would have been entitled based upon a termination of his employment
by him for "good reason" or by the Company "without cause," except that the
Ginsburg Separation and Consulting Agreement provides that the exercise price
for such stock options is $23.25 per share and shall become exercisable as
follows: (i) options for 266,666 shares shall be exercisable beginning on the
Agreement Date for a period of seven years thereafter, (ii) options for 266,667
shares shall be exercisable beginning one year from the Agreement Date for a
period of six years thereafter, and (iii) options for 266,667 shares shall be
exercisable beginning two years from the Agreement Date for a period of five
years thereafter. Previously granted stock options were unaffected by the
Ginsburg Separation and Consulting Agreement. The Ginsburg Separation and
Consulting Agreement also provides that Chancellor Media, CMHC and CMCLA shall
retain Mr. Ginsburg as a consultant through April 13, 2003, Mr. Ginsburg to be
compensated for such consulting services in an amount equal to $2,500,000 for
each full year of consulting
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services. The Ginsburg Separation and Consulting Agreement further provides for
three-year non-solicitation and non-hire covenants by Mr. Ginsburg, as well as
other mutual releases and other provisions typically found in an employment
termination agreement, but does not provide for a noncompetition agreement from
Mr. Ginsburg.
DE CASTRO EMPLOYMENT AGREEMENT
Effective as of April 17, 1998, Chancellor Media and the Company entered into a
new employment agreement (the "de Castro Employment Agreement") with Mr. de
Castro. The de Castro Employment Agreement, which has a term that extends
through April 17, 2003, provides for an initial annual base salary of $900,000
for the first year of the employment agreement, to be increased each year by a
percentage equal to the percentage change in the consumer price index during the
preceding year. In addition, the de Castro Employment Agreement provides for an
annual bonus based upon a percentage of the amount by which the Company exceeds
an annual performance target which is defined in the de Castro Employment
Agreement. The de Castro Employment Agreement provides that, on the effective
date thereof and on each of the first four anniversaries thereof on which Mr. de
Castro remains employed by the Company, Mr. de Castro shall be granted options
to purchase 160,000 shares of Common Stock. If Mr. de Castro's employment is
terminated without "cause" (as defined in the de Castro Employment Agreement) or
if Mr. de Castro terminates his employment for "good reason" (as defined in the
de Castro Employment Agreement) prior to the fifth annual anniversary of the
effective date of the de Castro Employment Agreement, Mr. de Castro will receive
on such termination date a number of options equal to 800,000 minus the number
of options previously granted to Mr. de Castro pursuant to the preceding
sentence prior to such date. The de Castro Employment Agreement provides (i) for
a signing bonus in the gross amount of $1,000,000, (ii) that the Company shall
make a one-time cash payment to Mr. de Castro in the gross amount of $5,000,000
less applicable employee withholding taxes and (iii) that the Company shall
grant to Mr. de Castro stock options to purchase 800,000 shares of Chancellor
Media Common Stock at a price of $42.125. All options granted pursuant to the de
Castro Employment Agreement will be exercisable for ten years from the date of
grant of the option (notwithstanding any termination of employment). The annual
option grant shall be at a price per share equal to the market price for Common
Stock at the close of trading on the day immediately preceding the date of the
grant. The de Castro Employment Agreement provides that, in the event of
termination of Mr. de Castro's employment by the Company without "cause" or by
Mr. de Castro with "good reason," the Company shall make a one-time cash payment
to Mr. de Castro in a gross amount such that the net payments retained by Mr. de
Castro shall equal $5,000,000 less applicable employee withholding taxes. The de
Castro Employment Agreement further provides that, in the event of termination
of Mr. de Castro's employment by Mr. de Castro for other than "good reason," in
exchange for Mr. de Castro's agreement not to induce any employee of any radio
station owned by the Company to terminate such employment or to become employed
by any other radio station, the Company shall continue to pay Mr. de Castro his
applicable base salary through the fifth anniversary of the effective date of
the de Castro Employment Agreement. In such event, the Company also has the
right, in exchange for the payment at the end of each calendar year through
December 31, 2002, of an annual amount equal to the product of Mr. de Castro's
average bonus multiplied by the fraction of each such calendar year which
precedes the fifth anniversary of the effective date of the de Castro Employment
Agreement, to require that Mr. de Castro not be
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<PAGE> 84
employed by or perform activities on behalf of or have ownership interest in any
radio broadcasting station serving the same market as any radio station owned by
the Company. The de Castro Employment Agreement further provides that if Mr. de
Castro's employment is terminated by reason of expiration or non-renewal of the
de Castro Employment Agreement, the Company shall make a one-time cash payment
to Mr. de Castro equal to two times the amount of his annual base salary for the
contract year in which such employment terminates. The de Castro Employment
Agreement provides that if the Company provides employment related benefits in
an aggregate amount greater than or on more favorable terms as are granted to
any other senior executives (except for benefits and Employment Inducements (as
defined therein) provided to the Chief Executive Officer), Mr. de Castro would
be provided such benefits in substantially comparable amount and/or under
substantially comparable terms, on an aggregate basis.
DEVINE EMPLOYMENT AGREEMENT
In May 1998, the Company entered into a new employment agreement (the "Devine
Employment Agreement") with Mr. Devine. The Devine Employment Agreement, which
has a term that extends through April 17, 2003, provides for an initial annual
base salary of $500,000 for the first year of the employment agreement, to be
increased each year by $25,000. In addition, the Devine Employment Agreement
provides for an annual bonus based upon a percentage of the amount by which the
Company exceeds an annual performance target which is defined in the Devine
Employment Agreement. The Devine Employment Agreement provides that, on the
effective date thereof and on each of the first four anniversaries thereof on
which Mr. Devine remains employed by the Company, Mr. Devine shall be granted
options to purchase 120,000 shares of Common Stock. If Mr. Devine's employment
is terminated without "cause" (as defined in the Devine Employment Agreement) or
if Mr. Devine terminates his employment for "good reason" (as defined in the
Devine Employment Agreement) prior to the fifth annual anniversary of the
effective date of the Devine Employment Agreement, Mr. Devine will receive on
such termination date a number of options equal to 600,000 minus the number of
options previously granted to Mr. Devine pursuant to the preceding sentence
prior to such date. In addition, the Devine Employment Agreement provides (a)
for a signing bonus in the gross amount of $1,000,000, (b) that the Company
shall make a one-time cash payment to Mr. Devine of $2,000,000 less applicable
employee withholding taxes and (c) that the Company shall grant to Mr. Devine
stock options to purchase 600,000 shares of Chancellor Media Common Stock at a
price of $42.125 per share. The Devine Employment Agreement provides that all
options granted pursuant to the Devine Employment Agreement will be exercisable
for ten years from the date of grant of the option (notwithstanding any
termination of employment). The annual option grant shall be at a price per
share equal to the market price for Common Stock at the close of trading on the
day immediately preceding the date of the grant. The Devine Employment Agreement
provides that, in the event of termination of Mr. Devine's employment by the
Company without "cause" or by Mr. Devine with "good reason," the Company shall
make a one-time cash payment to Mr. Devine in a gross amount such that the net
payments retained by Mr. Devine shall equal $2,000,000 less applicable employee
withholding taxes. The Devine Employment Agreement further provides that, in the
event of termination of Mr. Devine's employment by Mr. Devine for other than
"good reason," in exchange for Mr. Devine's agreement not to induce any employee
of any radio station owned by the Company to terminate such employment or to
become employed by any other radio
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<PAGE> 85
station, the Company shall continue to pay Mr. Devine his applicable base salary
through the earlier of the fifth anniversary of the effective date of the Devine
Employment Agreement or the second anniversary of the termination of employment
(the "Cessation Date"). In such event, the Company also has the right, in
exchange for the payment at the end of each calendar year through the year which
includes the Cessation Date of an annual amount equal to the product of Mr.
Devine's average bonus multiplied by the fraction of each such calendar year
which precedes the Cessation Date, to require that Mr. Devine not be employed by
or perform activities on behalf of or have an ownership interest in any radio
broadcasting station serving the same market as any radio station owned by the
Company. The Devine Employment Agreement further provides that if Mr. Devine's
employment is terminated by reason of expiration or non-renewal of the Devine
Employment Agreement, the Company shall make a one-time cash payment to Mr.
Devine equal to two times the amount of his annual base salary for the contract
year in which such employment terminates. The Devine Employment Agreement
provides that if the Company provides employment related benefits in an
aggregate amount greater than or on more favorable terms as are granted to any
other senior executives (except for benefits and Employment Inducements (as
defined therein) provided to the Chief Executive Officer or Chief Operating
Officer), Mr. Devine would be provided such benefits in substantially comparable
amount and/or substantially comparable terms, on an aggregate basis.
O'KEEFE EMPLOYMENT AGREEMENT
In February of 1996, the Company entered into an employment agreement (the
"O'Keefe Employment Agreement") with Mr. O'Keefe that has a term through
February 28, 1999 and provides for an annual base salary beginning at $300,000
in 1996 and increasing incrementally to $350,000 in 1998. The O'Keefe Employment
Agreement provides for Mr. O'Keefe to receive an annual incentive bonus based
upon a percentage of the amount by which the Company exceeds certain annual
performance targets as defined in the agreement. The agreement also provides
that Mr. O'Keefe is eligible for certain options to purchase Common Stock.
Pursuant to the agreement, Mr. O'Keefe was awarded options to purchase 300,000
shares of Common Stock. The stock options vest and become exercisable subject to
Mr. O'Keefe's continued employment by the Company through February 28, 1999.
However, Mr. O'Keefe may be eligible to exercise the options on a pro rata basis
in the event he is terminated prior to February 28, 1999 upon certain events
specified in his employment agreement, including Mr. O'Keefe's death or
disability, a change in control of the Company, termination without cause and a
material breach of the employment agreement by the Company leading to the
resignation of Mr. O'Keefe. The agreement terminates upon the death of Mr.
O'Keefe and may be terminated by the Company upon the disability of Mr. O'Keefe
or for or without "cause" (as defined in the agreement). During the term of the
agreement, Mr. O'Keefe is prohibited from engaging in certain activities
competitive with the business of the Company. However, with the approval of the
Company, Mr. O'Keefe may engage in activities not directly competitive with the
business of the Company as long as such activities do not materially interfere
with Mr. O'Keefe's employment obligations. On March 1, 1997, Evergreen and Mr.
O'Keefe amended the O'Keefe Employment Agreement in order to make certain
provisions of the O'Keefe Employment Agreement comparable to those contained in
Mr. de Castro's and Mr. Devine's former employment agreement.
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On September 4, 1997, the Company amended its employment agreement (the "O'Keefe
Amendment") with Mr. O'Keefe. As a result of the O'Keefe Amendment, the O'Keefe
Employment Agreement is to expire as of December 31, 1997, and the O'Keefe
Amendment is effective on January 1, 1998. The O'Keefe Amendment, which has a
term through December 31, 2000, provides for an initial annual base salary of
$500,000 for the first year of the employment agreement, to be increased each
year by $25,000. In addition, the O'Keefe Amendment provides for an annual bonus
based upon the financial performance of the Company in relation to certain
annual performance targets which are defined in the O'Keefe Amendment. The
O'Keefe Amendment provides that, on January 1, 1998 and 1999, assuming that Mr.
O'Keefe remains employed by the Company on such dates, Mr. O'Keefe shall be
granted options to purchase 100,000 shares of Common Stock. Furthermore, with
respect to the option to purchase 300,000 shares of Common Stock granted under
the O'Keefe Employment Agreement, (i) all such options will become exercisable
on February 28, 1999 if Mr. O'Keefe remains employed by the Company on such
date, (ii) if Mr. O'Keefe's employment is terminated as a result of Mr.
O'Keefe's death or disability or resignation by Mr. O'Keefe following a material
breach of the O'Keefe Amendment by the Company, a prorated portion of such
options will become exercisable and (iii) if Mr. O'Keefe's employment is
terminated without "cause" (as defined in the O'Keefe Amendment) or there is a
"change of control" (as defined in the O'Keefe Amendment), all such options
shall become exercisable. The O'Keefe Amendment provides that all options
described in the O'Keefe Amendment will be exercisable for seven years from the
date of grant of the option, and that all options granted pursuant to the
O'Keefe Amendment will be granted at a price per share equal to the market price
for Common Stock on the date of the grant. The O'Keefe Amendment provides that,
in the event of termination of Mr. O'Keefe's employment by the Company without
"cause," the Company shall pay Mr. O'Keefe his base salary and a prorated annual
bonus and provide health and life insurance coverage until the earlier of the
expiration of the term of the O'Keefe Amendment or the date on which Mr. O'Keefe
becomes employed in a position providing similar compensation.
MARCUS EMPLOYMENT AGREEMENT
The Company entered into an employment agreement (the "Marcus Employment
Agreement") with Jeffrey A. Marcus which is effective as of June 1, 1998. The
Marcus Employment Agreement, which has a term that extends through May 31, 2003,
provides for an initial annual base salary of $1,125,000 for the first year of
the employment agreement, to be increased each year by a percentage equal to the
percentage change in the consumer price index during the preceding year. The
Marcus Employment Agreement provides for a one-time execution bonus in the gross
amount of $1,000,000. In addition, the Marcus Employment Agreement provides for
an annual bonus in an amount to be determined by the Compensation Committee in
its reasonable discretion; provided, however, the annual bonus shall in no event
be less than $2,000,000 nor greater than $4,000,000. The Marcus Employment
Agreement provides that, on the effective date thereof and on each of the four
anniversaries thereof on which Mr. Marcus remains employed by the Company, Mr.
Marcus shall be granted options to purchase 200,000 shares of Common Stock. If
Mr. Marcus' employment is terminated without "cause" (as defined in the Marcus
Employment Agreement) or if Mr. Marcus terminates his employment for "good
reason" (as defined in the Marcus Employment Agreement) prior to the fourth
annual anniversary of the effective date of the Marcus Employment
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Agreement, Mr. Marcus will receive on such termination date a number of options
equal to 1,000,000 minus the number of options previously granted to Mr. Marcus
pursuant to the preceding sentence prior to such date. The Marcus Employment
Agreement provides that all options granted pursuant to the Marcus Employment
Agreement will be exercisable for ten years from the date of grant of such
options (notwithstanding any termination of employment), at a price per share
equal to the market price for Common Stock at the close of trading on the day
immediately preceding the date of the grant. Under the Marcus Employment
Agreement, Mr. Marcus shall also be granted options to purchase 1,250,000 shares
of Common Stock, one-half of which will vest on the date of the grant and
one-half of which will vest on the 18th month anniversary of the date of the
grant, with each option exercisable for ten years from the date of grant of such
options (notwithstanding any termination of employment), at a price of $42.125
per share. The Marcus Employment Agreement provides that, in the event of
termination of Mr. Marcus's employment by the Company without "cause" or by Mr.
Marcus with "good reason," the Company shall make a one-time cash payment to Mr.
Marcus in a gross amount such that the net payments retained by Mr. Marcus
(after payment by the Company of excise taxes imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, with respect to such payment, to the
extent applicable) shall equal $6,250,000.
The Marcus Employment Agreement further provides that, in the event of
termination of Mr. Marcus's employment by Mr. Marcus for other than "good
reason," in exchange for Mr. Marcus's agreement not to induce any employee of
any radio station owned by the Company to terminate such employment or to become
employed by any other radio station, the Company shall continue to pay Mr.
Marcus his applicable base salary through the fifth anniversary of the effective
date thereof. In such event, the Company also has the right, in exchange for the
payment at the end of each calendar year until each calendar year ending
December 31, 2003, of an annual amount equal to the product of Mr. Marcus's
average bonus multiplied by the fraction of each such calendar year which
precedes the fifth anniversary of the effective date of the Marcus Employment
Agreement, to require that Mr. Marcus not be employed by or perform activities
on behalf of or have ownership interest in any radio or television broadcasting
station serving the same market as any radio station owned by the Company, or in
connection with any business enterprise that is directly or indirectly engaged
in any of the business activities in which any business owned by the Company has
significant involvement, subject to certain exceptions. The Marcus Employment
Agreement further provides that if Mr. Marcus's employment is terminated by
reason of expiration or non-renewal of the Marcus Employment Agreement, the
Company shall make a one-time cash payment to Mr. Marcus equal to two times the
amount of his annual base salary for the contract year in which such employment
terminates. The Marcus Employment Agreement also provides that Mr. Marcus shall
be entitled to receive personal security services, to be paid for by the
Company, and certain other customary benefits and perquisites.
MCLAUGHLIN EMPLOYMENT AGREEMENT
On August 18, 1998, the Company entered into an employment agreement with Mr.
McLaughlin (the "McLaughlin Employment Agreement"), that has a term that extends
through August 18, 2003, and provides for an annual base salary of $500,000 for
the first year of the employment agreement, to be increased each year by a
percentage equal to the percentage change in the consumer price index during the
preceding year. The
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McLaughlin Employment Agreement provides for Mr. McLaughlin to receive an annual
bonus as determined by the Compensation Committee, based upon the recommendation
of the Chief Executive Officer. The McLaughlin Employment Agreement also
provides that on the agreement date and on each of the first four anniversaries
thereof on which Mr. McLaughlin remains employed by the Company, Mr. McLaughlin
shall be granted options to purchase 60,000 shares of Common Stock of the
Company. If Mr. McLaughlin's employment is terminated without "cause" (as
defined in the McLaughlin Employment Agreement) or if Mr. McLaughlin terminates
his employment for "good reason" (as defined in the McLaughlin Employment
Agreement) prior to the fifth anniversary of the effective date of the
McLaughlin Employment Agreement, Mr. McLaughlin will receive on such termination
date a number of options equal to 300,000 minus the number of options previously
granted to Mr. McLaughlin pursuant to the preceding sentence prior to such date.
In addition, as an execution bonus, the Company will grant to Mr. McLaughlin
options to purchase 300,000 shares of Common Stock of the Company at a price of
$48.375 per share 25% of which shall vest on the effective date thereof and 25%
of which will vest on each of the three anniversaries of the date of grant. The
Company also paid to Mr. McLaughlin a one-time execution bonus in the gross
amount of $1,000,000. The McLaughlin Employment Agreement provides that all
options granted pursuant to the McLaughlin Employment Agreement will be
exercisable for ten years from the date of grant of the option (notwithstanding
any termination of employment). The annual option grant shall be at a price per
share equal to the market price for Common Stock at the close of trading on the
day immediately preceding the date of the grant. The McLaughlin Employment
Agreement provides that, in the event of termination of Mr. McLaughlin's
employment by the Company without "cause" or by Mr. McLaughlin with "good
reason," the Company shall make a one-time cash payment to Mr. McLaughlin in a
gross amount such that the net payments retained by Mr. McLaughlin (after
payment by the Company of any excise taxes imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, with respect to such payment) shall
equal $1,000,000. The McLaughlin Employment Agreement further provides that, in
the event of termination of Mr. McLaughlin's employment by Mr. McLaughlin for
other than "good reason," in exchange for Mr. McLaughlin's agreement not to
induce any employee of any media company owned by the Company to terminate such
employment or to become employed by any other media company, the Company shall
continue to pay Mr. McLaughlin his applicable base salary though the earlier of
the fifth anniversary of the effective date thereof or the second anniversary of
the termination of employment (the "Cessation Date"). In such event, the Company
also has the right, in exchange for the payment at the end of each calendar year
through the year which includes the Cessation Date of an annual amount equal to
the product of Mr. McLaughlin's average bonus multiplied by the fraction of each
such calendar year which precedes the Cessation Date, to require that Mr.
McLaughlin not be employed by or perform activities on behalf of or have an
ownership interest in any media company serving the same market as any media
company owned by the Company.
NEUMAN EMPLOYMENT AGREEMENT
On June 1, 1998, the Company entered into an employment agreement with Mr.
Neuman, to be effective July 1, 1998 (the "Neuman Employment Agreement"), that
has a term that extends through July 1, 2003, and provides for an annual base
salary of $500,000 for the first year of the employment agreement, to be
increased each year by $25,000. The
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Neuman Employment Agreement provides for Mr. Neuman to receive an annual bonus
as determined by the Compensation Committee, based upon the recommendation of
the Chief Executive Officer; provided, however, that the bonus shall in no event
be less than $500,000 nor greater than $1,500,000. The Neuman Employment
Agreement provides that on the agreement date and on each of the first four
anniversaries of the effective date thereof on which Mr. Neuman remains employed
by the Company, Mr. Neuman shall be granted options to purchase 100,000 shares
of Common Stock of the Company. If Mr. Neuman's employment is terminated without
"cause" (as defined in the Neuman Employment Agreement) or if Mr. Neuman
terminates his employment for "good reason" (as defined in the Neuman Employment
Agreement) prior to the fifth anniversary of the effective date of the Neuman
Employment Agreement, Mr. Neuman will receive on such termination date a number
of options equal to 500,000 minus the number of options previously granted to
Mr. Neuman pursuant to the preceding sentence prior to such date. In addition,
as an execution bonus, the Company will grant to Mr. Neuman options to purchase
300,000 shares of Common Stock of the Company at a price of $42.3125 per share.
The Neuman Employment Agreement provides that all options granted pursuant to
the Neuman Employment Agreement will be exercisable for ten years from the date
of grant of the option (notwithstanding any termination of employment). The
annual option grant shall be at a price per share equal to the market price for
Common Stock at the close of trading on the day immediately preceding the date
of the grant. The Neuman Employment Agreement provides that, in the event of
termination of Mr. Neuman's employment by the Company without "cause" or by Mr.
Neuman with "good reason," the Company shall make a one-time cash payment to Mr.
Neuman in a gross amount such that the net payments retained by Mr. Neuman
(after payment by the Company of any excise taxes imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, with respect to such payment) shall
equal $2,000,000. The Neuman Employment Agreement further provides that, in the
event of termination of Mr. Neuman's employment by Mr. Neuman for other than
"good reason," in exchange for Mr. Neuman's agreement not to induce any employee
of any media company owned by the Company to terminate such employment or to
become employed by any other media company, the Company shall continue to pay
Mr. Neuman his applicable base salary through the earlier of the fifth
anniversary of the effective date thereof or the second anniversary of the
termination of employment (the "Cessation Date"). In such event, the Company
also has the right, in exchange for the payment at the end of each calendar year
through the year which includes the Cessation Date of an annual amount equal to
the product of Mr. Neuman's average bonus multiplied by the fraction of each
such calendar year which precedes the Cessation Date, to require that Mr. Neuman
not be employed by or perform activities on behalf of or have an ownership
interest in any media company serving the same market as any media company owned
by the Company. The Neuman Employment Agreement further provides that if Mr.
Neuman's employment is terminated by reason of expiration or non-renewal of the
Neuman Employment Agreement, the Company shall make a one-time cash payment to
Mr. Neuman equal to two times the amount of his annual base salary for the
contract year in which such employment terminates. The Neuman Employment
Agreement provides that if the Company provides employment related benefits in
an aggregate amount greater than or on more favorable terms as are granted to
any other senior executives (except for benefits and Employment Inducements (as
defined therein) provided to the Chief Executive Officer or Chief Operating
Officer), Mr. Neuman would
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be provided such benefits in a substantially comparable amount and/or under
substantially comparable terms, on an aggregate basis.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION IN COMPENSATION
DECISIONS
The members of the compensation committee of Chancellor Media, CMHC and the
Company are Messrs. Hicks, Massey, Jordan, Marcus and Lewis. Mr. Hicks serves as
chairman of the compensation committee, and also serves as the Chairman of the
Board of Chancellor Media, CMHC and the Company. Messrs. Massey and Marcus
previously served on the compensation committee of Chancellor, and Mr. Lewis
previously served on the compensation committee of Evergreen.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table lists information concerning the beneficial ownership of the
Common Stock of Chancellor Media on October 31, 1998 by (i) each director and
executive officer of Chancellor Media and their affiliates on October 31, 1998,
(ii) all directors and executive officers as a group and (iii) each person known
to the Company to own beneficially more than 5% of the Common Stock of
Chancellor Media. As of October 31, 1998, 1,000 shares of the common stock of
CMCLA are held beneficially and of record by CMHC, and 40 shares are held
beneficially and of record by a wholly-owned subsidiary of CMHC. As of October
31, 1998, all of the common stock of CMHC is held beneficially and of record by
Chancellor Media Corporation.
<TABLE>
<CAPTION>
NAME OF STOCKHOLDER SHARES PERCENT(1)
- ------------------- ---------- ----------
<S> <C> <C>
Hicks Muse Parties(2)........................ 16,944,371 11.9%
c/o Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Putnam Investments, Inc.(3).................. 16,956,556 11.9%
One Post Office Square
Boston, Massachusetts 02109
Janus Capital Corporation(4)................. 14,507,490 10.2%
100 Fillmore Street
Denver, Colorado 80206-4923
Thomas O. Hicks.............................. 16,944,371(5) 11.9%
Jeffrey A. Marcus............................ 1,018,402(6) *
James E. de Castro........................... 2,505,000(7) 1.7%
Matthew E. Devine............................ 1,470,000(8) 1.0%
Eric C. Neuman............................... 406,356(9) *
James A. McLaughlin.......................... 75,000(10) *
Kenneth J. O'Keefe........................... 104,000(11) *
Thomas J. Hodson............................. 30,000(12) *
Perry J. Lewis............................... 133,215(13) *
Lawrence D. Stuart, Jr....................... 11,292 *
John H. Massey............................... 46,024(14) *
Steven Dinetz................................ 1,443,954(15) 1.0%
Vernon E. Jordan, Jr......................... 5,000(16) *
J. Otis Winters.............................. -- *
Michael J. Levitt............................ -- *
All directors and executive officers as a
group...................................... 24,192,614(17) 16.2%
</TABLE>
- -------------------------
* Less than one percent (1%).
(1) Assumes that 142,614,039 shares of Chancellor Media Common Stock were
issued and outstanding as of October 31, 1998.
(2) Consists of 1,278,969 shares owned of record by Thomas O. Hicks, 346,736
shares owned of record by Mr. Hicks as trustee for certain trusts of which
his children are beneficiaries and 20,816 shares owned of record by Mr.
Hicks as co-trustee of a trust
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for the benefit of unrelated parties. Also includes 15,297,850 shares owned
of record by three limited partnerships of which the ultimate general
partners are entities controlled by Mr. Hicks or Hicks Muse. Mr. Hicks is
the controlling stockholder of Hicks Muse and serves as Chairman of the
Board, Chief Executive Officer and Secretary of Hicks Muse. Accordingly,
Mr. Hicks may be deemed to be the beneficial owner of all or a portion of
the stock owned of record by such limited partnerships. John R. Muse,
Charles W. Tate, Jack D. Furst, Lawrence D. Stuart, Jr., Michael J. Levitt,
David B. Deniger and Dan H. Blanks are officers, directors and minority
stockholders of Hicks Muse and as such may be deemed to share with Mr.
Hicks the power to vote or dispose of shares held by such partnerships.
Messrs. Hicks, Muse, Tate, Furst, Stuart, Levitt, Deniger and Blanks
disclaim the existence of a group and each of them disclaims beneficial
ownership of shares not owned of record by him.
(3) Based solely upon information contained in such person's filing on
September 18, 1998 of Schedule 13G under the Exchange Act.
(4) Includes 7,747,315 shares owned by Janus Fund, an investment company
registered under the Investment Company Act of 1940, as amended. Based
solely upon information contained in such person's filing on September 10,
1998 of Schedule 13G under the Exchange Act.
(5) Consists of 1,278,969 shares owned of record by Mr. Hicks, 346,736 shares
owned of record by Mr. Hicks as trustee for certain trusts of which his
children are beneficiaries and 20,816 shares owned of record by Mr. Hicks
as co-trustee of a trust for the benefit of unrelated parties. Also
includes 15,297,850 shares owned of record by three limited partnerships of
which the ultimate general partners are entities controlled by Mr. Hicks
and Hicks Muse. Mr. Hicks is the controlling stockholder of Hicks Muse and
serves as Chairman of the Board, Chief Executive Officer and Secretary of
Hicks Muse. Accordingly, Mr. Hicks may be deemed to be the beneficial owner
of all or a portion of the stock owned of record by such limited
partnerships. Mr. Hicks disclaims beneficial ownership of shares not owned
of record by him.
(6) Includes options that are exercisable within 60 days of the date hereof to
purchase 849,242 shares, 825,000 of which are subject to options to be
granted pursuant to the Marcus Employment Agreement.
(7) Consists of options that are exercisable within 60 days of the date hereof
to purchase 2,505,000 shares, 960,000 of which are subject to options to be
granted pursuant to the de Castro Employment Agreement.
(8) Consists of options that are exercisable within 60 days of the date hereof
to purchase 1,470,000 shares, 720,000 of which are subject to options to be
granted pursuant to the Devine Employment Agreement.
(9) Includes options that are exercisable within 60 days of the date hereof to
purchase 400,000 shares to be granted pursuant to the Newman Employment
Agreement.
(10) Consists of options that are exercisable within 60 days of the date hereof
to purchase 75,000 shares to be granted pursuant to the McLaughlin
Employment Agreement.
(11) Includes options that are exercisable within 60 days of the date hereof to
purchase 100,000 shares.
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<PAGE> 93
(12) Consists of options that are exercisable within 60 days of the date hereof
to purchase 30,000 shares.
(13) Includes options that are exercisable within 60 days of the date hereof to
purchase 30,000 shares.
(14) Consists of options that are exercisable within 60 days of the date hereof
to purchase 29,242 shares and 16,782 shares held by Mr. Massey's wife as
her separate property.
(15) Includes (i) options that are exercisable within 60 days of the date hereof
to purchase 1,310,956 shares, (ii) 1,090 shares held by an individual
retirement account for the benefit of Mr. Dinetz and (iii) 1,000 shares
held by Mr. Dinetz' daughter. Mr. Dinetz disclaims beneficial ownership of
the shares of Chancellor Media Common Stock that are not owned by him of
record.
(16) Consists of options that are exercisable within 60 days of the date hereof
to purchase 5,000 shares.
(17) Includes options to purchase 6,804,440 shares.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company is subject to a financial monitoring and oversight agreement, dated
April 1, 1996, as amended on September 4, 1997 (the "Financial Monitoring and
Oversight Agreement"), with Hicks, Muse & Co. Partners, L.P. ("Hicks Muse
Partners"), an affiliate of Hicks Muse. Pursuant to the Financial Monitoring and
Oversight Agreement, the Company pays to Hicks Muse Partners an annual fee of
not less than $1.0 million, subject to increase or decrease (but not below $1.0
million), based upon changes in the Consumer Price Index. Hicks Muse Partners is
also entitled to reimbursement for any out-of-pocket expenses incurred in
connection with rendering services under the Financial Monitoring and Oversight
Agreement. The Financial Monitoring and Oversight Agreement provides that the
agreement will terminate at such time as Thomas O. Hicks and his affiliates
collectively cease to beneficially own at least two-thirds of the number of
shares of Common Stock beneficially owned by them, collectively, at the
effective time of the Chancellor Merger. The Company and Chancellor paid Hicks
Muse Partners a total of $0.7 million in 1997 pursuant to the Financial
Monitoring and Oversight Agreement of which $0.3 million was paid by the Company
following the Chancellor Merger and which is included in corporate general and
administrative expense in the accompanying consolidated statement of operations.
In connection with the consummation of the Chancellor Merger, a Financial
Advisory Agreement among Chancellor, CRBC and HM2/Management Partners, L.P.
("HM2/Management"), an affiliate of Hicks Muse, was terminated. In consideration
thereof, in lieu of any payments required to be made under the Financial
Advisory Agreement in respect of the transactions contemplated by the Chancellor
Merger, HM2/Management was paid a fee of $10.0 million in cash upon consummation
of the Chancellor Merger which was accounted for as a direct acquisition cost.
As part of the termination of the Financial Advisory Agreement, the Company paid
Hicks Muse Partners $1.5 million for financial advisory services in connection
with the Katz Acquisition which was accounted for as a direct acquisition cost.
Upon the consummation of the Capstar Merger, the Company will become subject to
a Financial Advisory Agreement pursuant to which Hicks Muse will be entitled to
be financial advisor on certain transactions of the Company and its subsidiaries
as follows: (a) on any acquisition, disposition or exchange transaction (an "M&A
Transaction") for which the Company or any such subsidiaries retain any
Financial Advisor (as hereinafter defined), Hicks Muse shall be entitled to
serve as a co-financial advisor on such transaction and shall have the right to
mutually agree with the Company's indirect parent upon the selection of any such
Financial Advisor or Financial Advisors so retained and, unless mutually agreed
to otherwise by Hicks Muse and the Company's indirect parent, Hicks Muse would
be entitled to receive a "market fee" for its services in connection therewith
of no less than 50% of the aggregate fees paid to all such advisors (including
Hicks Muse), (b) on any M&A Transaction of the Company or any of its
subsidiaries for which a Financial Advisor is not retained by the Company or any
of its subsidiaries but has a transaction value in excess of $500 million, Hicks
Muse would be the exclusive financial advisor of the Company and its
subsidiaries and receive a "market fee" for its services in connection
therewith, and (c) on any underwriting, loan syndication, equity placement or
other financing transaction (a "Financing Transaction") in which the Company or
any of its subsidiaries retain one or more Financial Advisors, Hicks Muse would
have the right to mutually agree with the Company's parent on the selection of
each
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<PAGE> 95
such Financial Advisor in connection with such Financing Transaction. "Financial
Advisor" shall mean any investment bank, commercial bank, underwriter, arranging
or syndication agent or other person or entity that provides investment banking,
underwriting, financial advice, valuation or other similar services with respect
to any M&A Transaction or Financing Transaction; provided, however, that a
Financial Advisor shall not include ordinary business brokers.
Vernon E. Jordan, Jr., a director of the Company, also serves on the board of
directors of Bankers Trust Company and Bankers Trust New York Corporation.
Affiliates of Bankers Trust Company and Bankers Trust New York Corporation have
provided a variety of commercial banking, investment banking and financial
advisory services to the Company, and expect to continue to provide such
services to the Company in the future.
Chancellor Media is subject to that certain Amended and Restated Stockholders
Agreement, dated as of February 14, 1996, as amended on September 4, 1997 (the
"Chancellor Stockholders Agreement"), among Chancellor and certain holders of
the Common Stock held by former stockholders of Chancellor, which provides for
certain registration rights for the shares of Common Stock held by such holders.
The Chancellor Stockholders Agreement relates to shares of Common Stock held by
certain affiliates of Hicks Muse.
As part of the Chancellor Merger, the Company has made certain cash payments and
accelerated the vesting of certain stock options previously granted by
Chancellor to Steven Dinetz, a director of the Company. For a description of
these transactions, see "Executive Compensation -- Compensation of Executive
Officers."
The Company has entered into an agreement relating to the Capstar/SFX
Transaction and Chancellor Media has entered into an agreement relating to the
Capstar Merger, each with Capstar, which is affiliated with the Company. In
addition, Chancellor Media has entered into an agreement relating to the LIN
Merger. Affiliates of Hicks Muse have a controlling interest in Capstar and LIN
and a substantial investment in Chancellor Media. For a description of these
transactions, see "Business -- Recent Developments."
Certain radio stations owned by Capstar have engaged Katz to sell national spot
advertising air time, and such stations pay customary commissions to Katz for
such services. Additionally, Capstar's radio stations are affiliated with the
AMFM Radio Networks and receive a portion of advertising revenues generated by
the network.
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THE EXCHANGE OFFER
PURPOSE AND EFFECT
The Old Notes were sold by the Company on September 25, 1998. In connection with
that placement, the Company entered into the Registration Rights Agreement,
which requires that the Company file the Registration Statement under the
Securities Act with respect to the New Notes and, upon the effectiveness of that
Registration Statement, offer to the holders of the Old Notes the opportunity to
exchange their Old Notes for a like principal amount of New Notes, which will be
issued without a restrictive legend and which generally may be reoffered and
resold by the holder without registration under the Securities Act. The
Registration Rights Agreement further provides that the Company must use its
reasonable best efforts to (i) cause the Registration Statement with respect to
the exchange offer to be declared effective within 180 days of the date on which
the Company issued the Old Notes and (ii) consummate the exchange offer on or
before the 225th day following the date on which the Company issued the Old
Notes. Except as provided below, upon the completion of the exchange offer, the
Company's obligations with respect to the registration of the Old Notes and the
New Notes will terminate. A copy of the Registration Rights Agreement has been
filed as an exhibit to the Registration Statement, of which this Prospectus is a
part, and the summary herein of the material provisions thereof does not purport
to be complete and is qualified in its entirety by reference thereto. As a
result of the timely filing and the effectiveness of the Registration Statement,
certain liquidated damages provided for in the Registration Rights Agreement
will not become payable by the Company. Following the completion of the exchange
offer (except as set forth in the paragraph immediately below), holders of Old
Notes not tendered will not have any further registration rights and those Old
Notes will continue to be subject to certain restrictions on transfer.
Accordingly, the liquidity of the market for the Old Notes could be adversely
affected upon consummation of the exchange offer.
In order to participate in the exchange offer, a holder must represent to the
Company and the Guarantors, among other things, that (i) the New Notes acquired
pursuant to the exchange offer are being obtained in the ordinary course of
business of the holder, (ii) the holder is not engaging in and does not intend
to engage in a distribution of the New Notes, (iii) the holder does not have an
arrangement or understanding with any person to participate in the distribution
of the New Notes and (iv) the holder is not an "affiliate," as defined under
Rule 405 promulgated under the Securities Act, of the Company and the
Guarantors. Pursuant to the Registration Rights Agreement if (i) the Company
determines that it is not permitted to effect the exchange offer as contemplated
hereby because of any change in applicable law or Commission policy, or (ii) any
Holder of Transfer Restricted Securities notifies the Company prior to the 20th
day following consummation of the exchange offer (a) that it is prohibited by
law or SEC policy from participating in the exchange offer, (b) that it may not
resell the New Notes acquired by it in the exchange offer to the public without
delivering a prospectus and that this Prospectus is not appropriate or available
for such resales or (c) that it is a broker-dealer and owns Old Notes acquired
directly from the Company or an affiliate of the Company, the Company is
required to file a "shelf" registration statement for a continuous offering
pursuant to Rule 415 under the Securities Act in respect of the Old Notes. For
purposes of the foregoing, "Transfer Restricted Securities" means each Old Note
until (i) the date on which such Note has been exchanged by a person other than
a broker-dealer for a New
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Note in the exchange offer, (ii) following the exchange by a broker-dealer in
the Exchange Offer of an Old Note for a New Note, the date on which such New
Note is sold to a purchaser who receives from such broker-dealer on or prior to
the date of such sale a copy of this Prospectus, (iii) the date on which such
Old Note has been electively registered under the Securities Act and disposed of
in accordance with such "shelf" registration statement or (iv) the date on which
such Old Note is distributed to the public pursuant to Rule 144 under the Act or
may be distributed to the public pursuant to Rule 144(k) under the Act. Other
than as set forth in this paragraph, no holder will have the right to
participate in the "shelf" registration statement nor otherwise require that the
Company register such holder's shares of Old Notes under the Securities Act. See
"-- Procedures for Tendering."
Based on an interpretation by the SEC's staff set forth in no-action letters
issued to third parties unrelated to the Company and the Guarantors, the Company
believes that, with the exceptions set forth below, New Notes issued pursuant to
the exchange offer in exchange for Old Notes may be offered for resale, resold
and otherwise transferred by holders thereof (other than any holder which is an
"affiliate" of the Company or the Guarantors within the meaning of Rule 405
promulgated under the Securities Act, or a broker-dealer who purchased Old Notes
directly from us to resell pursuant to Rule 144A or any other available
exemption promulgated under the Securities Act) without compliance with the
registration and prospectus delivery provisions of the Securities Act, provided
that the New Notes are acquired in the ordinary course of business of the holder
and the holder does not have an arrangement or understanding with any person to
participate in the distribution of such New Notes. Any holder who tenders in the
exchange offer for the purpose of participating in a distribution of the New
Notes cannot rely on this interpretation by the SEC's staff and must comply with
the registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction. Each broker-dealer that receives
New Notes for its own account in exchange for Old Notes, where such Old Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. See "Plan of Distribution."
Broker-dealers who acquired Old Notes directly from us and not as a result of
market-making activities or other trading activities may not rely on the staff's
interpretations discussed above or participate in the exchange offer and must
comply with the prospectus delivery requirements of the Securities Act in order
to sell the Old Notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
Following the completion of the exchange offer (except as set forth in the
second paragraph under "-- Purpose and Effect" above), holders of Old Notes not
tendered will not have any further registration rights and those Old Notes will
continue to be subject to certain restrictions on transfer. Accordingly, the
liquidity of the market for a holder's Old Notes could be adversely affected
upon completion of the exchange offer if the holder does not participate in the
exchange offer.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus and in
the letter of transmittal, the Company will accept any and all Old Notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on December
, 1998, or such date
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<PAGE> 98
and time to which we extend the offer. The Company will issue $1,000 principal
amount of New Notes in exchange for each $1,000 principal amount of outstanding
Old Notes accepted in the exchange offer. Holders may tender some or all of
their Old Notes pursuant to the exchange offer. However, Old Notes may be
tendered only in integral multiples of $1,000 in principal amount.
The form and terms of the New Notes are substantially the same as the form and
terms of the Old Notes except that the New Notes have been registered under the
Securities Act and will not bear legends restricting their transfer. The New
Notes will evidence the same debt as the Old Notes and will be issued pursuant
to, and entitled to the benefits of, the Indenture pursuant to which the Old
Notes were issued.
As of November 1, 1998, Old Notes representing $750.0 million aggregate
principal amount were outstanding and there was one registered holder, a nominee
of the DTC. This Prospectus, together with the letter of transmittal, is being
sent to such registered holder and to others believed to have beneficial
interests in the Old Notes. The Company intends to conduct the exchange offer in
accordance with the applicable requirements of the Exchange Act and the rules
and regulations of the SEC promulgated thereunder.
The Company shall be deemed to have accepted validly tendered Old Notes when,
as, and if the Company has given oral or written notice thereof to the Exchange
Agent. The Exchange Agent will act as agent for the tendering holders for the
purpose of receiving the New Notes from the Company. If any tendered Old Notes
are not accepted for exchange because of an invalid tender, the occurrence of
certain other events set forth herein or otherwise, certificates for any such
unaccepted Old Notes will be returned, without expense, to the tendering holder
thereof as promptly as practicable after December , 1998, unless the exchange
offer is extended.
Holders who tender Old Notes in the exchange offer will not be required to pay
brokerage commissions or fees or, subject to the instructions in the letter of
transmittal, transfer taxes with respect to the exchange of Old Notes pursuant
to the exchange offer. The Company will pay all charges and expenses, other than
certain applicable taxes, in connection with the exchange offer. See "-- Fees
and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The expiration date shall be 5:00 p.m., New York City time, on December ,
1998, unless the Company, in its sole discretion, extends the exchange offer, in
which case the expiration date shall mean the latest date and time to which the
exchange offer is extended. In order to extend the exchange offer, the Company
will notify the Exchange Agent and each registered holder of any extension by
oral or written notice prior to 9:00 a.m., New York City time, on the next
business day after the previously scheduled expiration date. The Company
reserves the right, in its sole discretion, (i) to delay accepting any Old
Notes, to extend the exchange offer or, if any of the conditions set forth under
"-- Conditions to Exchange Offer" shall not have been satisfied, to terminate
the exchange offer, by giving oral or written notice of such delay, extension or
termination to the Exchange Agent, or (ii) to amend the terms of the exchange
offer in any manner. In the event that the Company makes a material or
fundamental change to the terms of the exchange offer, the Company will file a
post-effective amendment to the Registration Statement.
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PROCEDURES FOR TENDERING
Only a holder of Old Notes may tender the Old Notes in the exchange offer.
Except as set forth under "-- Book Entry Transfer," to tender in the exchange
offer a holder must complete, sign, and date the Letter of Transmittal, or a
copy thereof, have the signatures thereon guaranteed if required by the Letter
of Transmittal, and mail or otherwise deliver the Letter of Transmittal or copy
to the Exchange Agent prior to the expiration date. In addition, (i)
certificates for such Old Notes must be received by the Exchange Agent along
with the Letter of Transmittal prior to the expiration date, (ii) a timely
confirmation of a book-entry transfer (a "Book-Entry Confirmation") of such Old
Notes, if that procedure is available, into the Exchange Agent's account at DTC
(the "Book-Entry Transfer Facility") pursuant to the procedure for book-entry
transfer described below, must be received by the Exchange Agent prior to the
expiration date or (iii) the holder must comply with the guaranteed delivery
procedures described below. To be tendered effectively, the letter of
transmittal and other required documents must be received by the Exchange Agent
at the address set forth under "-- Exchange Agent" prior to the expiration date.
The tender by a holder that is not withdrawn before the expiration date will
constitute an agreement between that holder and the Company in accordance with
the terms and subject to the conditions set forth herein and in the letter of
transmittal.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE
HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN
OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE COMPANY. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR
NOMINEES TO EFFECT THESE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a broker,
dealer, commercial bank, trust company, or other nominee and who wishes to
tender should contact the registered holder promptly and instruct the registered
holder to tender on the beneficial owner's behalf. If the beneficial owner
wishes to tender on the owner's own behalf, the owner must, prior to completing
and executing the letter of transmittal and delivering the owner's Old Notes,
either make appropriate arrangements to register ownership of the Old Notes in
the beneficial owner's name or obtain a properly completed bond power from the
registered holder. The transfer of registered ownership may take considerable
time.
Signatures on a letter of transmittal or a notice of withdrawal, as the case may
be, must be guaranteed by an Eligible Institution (as defined) unless Old Notes
tendered pursuant thereto are tendered (i) by a registered holder who has not
completed the box entitled "Special Registration Instruction" or "Special
Delivery Instructions" on the letter of transmittal or (ii) for the account of
an Eligible Institution. If signatures on a letter of transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, the guarantee
must be by any eligible guarantor institution that is a member of or participant
in the Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Program or an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible Institution").
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<PAGE> 100
If the letter of transmittal is signed by a person other than the registered
holder of any Old Notes listed therein, the Old Notes must be endorsed or
accompanied by a properly completed bond power, signed by the registered holder
as that registered holder's name appears on the Old Notes.
If the letter of transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and evidence satisfactory to the
Company of their authority to so act must be submitted with the letter of
transmittal unless waived by the Company.
All questions as to the validity, form, eligibility (including time of receipt),
acceptance, and withdrawal of tendered Old Notes will be determined by the
Company in its sole discretion, which determination will be final and binding.
The Company reserves the absolute right to reject any and all Old Notes not
properly tendered or any Old Notes the Company's acceptance of which would, in
the opinion of counsel for the Company, be unlawful. The Company also reserves
the right to waive any defects, irregularities or conditions of tender as to
particular Old Notes. The Company's interpretation of the terms and conditions
of the exchange offer (including the instructions in the letter of transmittal)
will be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Company shall determine. Although the Company intends to notify
holders of defects or irregularities with respect to tenders of Old Notes,
neither the Company, the Exchange Agent, nor any other person shall incur any
liability for failure to give such notification. Tenders of Old Notes will not
be deemed to have been made until such defects or irregularities have been cured
or waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering holders, unless
otherwise provided in the letter of transmittal, as soon as practicable
following December , 1998, unless the exchange offer is extended.
In addition, the Company reserves the right in its sole discretion to purchase
or make offers for any Old Notes that remain outstanding after the expiration
date or, as set forth under "-- Conditions to the exchange offer," to terminate
the exchange offer and, to the extent permitted by applicable law, purchase Old
Notes in the open market, in privately negotiated transactions, or otherwise.
The terms of any such purchases or offers could differ from the terms of the
exchange offer.
By tendering, each holder will represent to the Company and the Guarantors that,
among other things, (i) the New Notes acquired pursuant to the exchange offer
are being obtained in the ordinary course of business of the person receiving
such New Notes, whether or not such person is the registered holder, (ii) the
holder is not engaging in and does not intend to engage in a distribution of
such New Notes, (iii) the holder does not have an arrangement or understanding
with any person to participate in the distribution of such New Notes and (iv)
the holder is not an "affiliate," as defined under Rule 405 of the Securities
Act, of the Company and the Guarantors.
In all cases, issuance of New Notes for Old Notes that are accepted for exchange
pursuant to the exchange offer will be made only after timely receipt by the
Exchange Agent of certificates for such Old Notes or a timely Book-Entry
Confirmation of such Old Notes into the Exchange Agent's account at the
Book-Entry Transfer Facility, a properly
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<PAGE> 101
completed and duly executed letter of transmittal (or, with respect to the DTC
and its participants, electronic instructions in which the tendering holder
acknowledges its receipt of and agreement to be bound by the letter of
transmittal), and all other required documents. If any tendered Old Notes are
not accepted for any reason set forth in the terms and conditions of the
exchange offer or if Old Notes are submitted for a greater principal amount than
the holder desires to exchange, such unaccepted or non-exchanged Old Notes will
be returned without expense to the tendering Holder thereof (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures
described below, such nonexchanged Old Notes will be credited to an account
maintained with such Book-Entry Transfer Facility) as promptly as practicable
after the expiration or termination of the exchange offer.
Each broker-dealer that receives New Notes for its own account in exchange for
Old Notes, where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such New Notes.
See "Plan of Distribution."
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect to
the Old Notes at the Book-Entry Transfer Facility for purposes of the exchange
offer within two business days after the date of this Prospectus, and any
financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of Old Notes being tendered by
causing the Book-Entry Transfer Facility to transfer such Old Notes into the
Exchange Agent's account at the Book-Entry Transfer Facility in accordance with
such Book-Entry Transfer Facility's procedures for transfer. However, although
delivery of Old Notes may be effected through book-entry transfer at the Book-
Entry Transfer Facility, the letter of transmittal or copy thereof, with any
required signature guarantees and any other required documents, must, in any
case other than as set forth in the following paragraph, be transmitted to and
received by the Exchange Agent at the address set forth under "-- Exchange
Agent" on or prior to the expiration date or the guaranteed delivery procedures
described below must be complied with.
DTC's Automated Tender Offer Program ("ATOP") is the only method of processing
exchange offers through DTC. To accept the exchange offer through ATOP,
participants in DTC must send electronic instructions to DTC through DTC's
communication system in lieu of sending a signed, hard copy letter of
transmittal. DTC is obligated to communicate those electronic instructions to
the Exchange Agent. To tender Old Notes through ATOP, the electronic
instructions sent to DTC and transmitted by DTC to the Exchange Agent must
contain the character by which the participant acknowledges its receipt of and
agrees to be bound by the letter of transmittal.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of the Old Notes desires to tender such Old Notes and the
Old Notes are not immediately available, or time will not permit such holder's
Old Notes or other required documents to reach the Exchange Agent before the
expiration date, or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if (i) the tender is made through an
Eligible Institution, (ii) prior to the expiration date, the Exchange Agent
receives from such Eligible Institution a properly
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<PAGE> 102
completed and duly executed letter of transmittal (or a facsimile thereof) and
notice of guaranteed delivery, substantially in the form provided by the Company
(by telegram, telex, facsimile transmission, mail or hand delivery), setting
forth the name and address of the holder of Old Notes and the amount of Old
Notes tendered, stating that the tender is being made thereby and guaranteeing
that within three New York Stock Exchange, Inc. ("NYSE") trading days after the
date of execution of the notice of guaranteed delivery, the certificates for all
physically tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, will be deposited by the Eligible Institution
with the Exchange Agent and (iii) the certificates for all physically tendered
Old Notes, in proper form for transfer, or a Book-Entry Confirmation, as the
case may be, are received by the Exchange Agent within three NYSE trading days
after the date of execution of the notice of guaranteed delivery.
WITHDRAWAL RIGHTS
Tenders of Old Notes may be withdrawn at any time prior to 5:00 p.m., New York
City time, on the expiration date.
For a withdrawal of a tender of Old Notes to be effective, a written or (for DTC
participants) electronic ATOP transmission notice of withdrawal must be received
by the Exchange Agent at its address set forth under "-- Exchange Agent" prior
to 5:00 p.m., New York City time, on the expiration date. Any such notice of
withdrawal must (i) specify the name of the person having deposited the Old
Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to be
withdrawn (including the certificate number or numbers and principal amount of
such Old Notes), (iii) be signed by the holder in the same manner as the
original signature on the letter of transmittal by which such Old Notes were
tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Trustee register the transfer of
such Old Notes into the name of the person withdrawing the tender, and (iv)
specify the name in which any such Old Notes are to be registered, if different
from that of the Depositor. All questions as to the validity, form, and
eligibility (including time of receipt) of such notices will be determined by
the Company, whose determination shall be final and binding on all parties. Any
Old Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the exchange offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender, or termination of the
exchange offer. Properly withdrawn Old Notes may be retendered by following one
of the procedures under "-- Procedures for Tendering" at any time on or prior to
the expiration date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the exchange offer, the Company shall not
be required to accept for exchange, or to issue New Notes in exchange for, any
Old Notes and may terminate or amend the exchange offer if at any time before
the acceptance of such Old Notes for exchange or the exchange of the New Notes
for such Old Notes, the Company determines that the exchange offer violates
applicable law, any applicable interpretation of the staff of the Commission or
any order of any governmental agency or court of competent jurisdiction.
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The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any such
condition or may be waived by the Company in whole or in part at any time and
from time to time in its sole discretion. The failure by the Company at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
In addition, the Company will not accept for exchange any Old Notes tendered,
and no New Notes will be issued in exchange for any such Old Notes, if at such
time any stop order shall be threatened or in effect with respect to the
Registration Statement of which this Prospectus constitutes a part or the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended. In any such event the Company is required to use every reasonable
effort to obtain the withdrawal of any stop order at the earliest possible time.
EXCHANGE AGENT
All executed letters of transmittal should be directed to the Exchange Agent.
The Bank of New York has been appointed as Exchange Agent for the exchange
offer. Questions, requests for assistance and requests for additional copies of
this Prospectus or of the letter of transmittal should be directed to the
Exchange Agent addressed as follows:
THE BANK OF NEW YORK
<TABLE>
<S> <C>
By Registered or Certified Mail: By Hand or Overnight Delivery:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7-E Corporate Trust Services Window
New York, New York 10286 Ground Level
Attention: Chris Brown New York, New York 10286
Attention: Chris Brown
</TABLE>
By Facsimile:
(Eligible Institutions Only)
(212) 815-6339
For Information or
Confirmation by Telephone:
(212) 815-4997
Originals of all documents sent by facsimile should be sent promptly
by registered or certified mail, by hand or by overnight delivery service.
FEES AND EXPENSES
The Company will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. The principal solicitation is being made by
mail; however, additional solicitations may be made in person or by telephone by
officers and employees of the Company.
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The estimated cash expenses to be incurred in connection with the exchange offer
will be paid by the Company and are estimated in the aggregate to be $700,000,
which includes fees and expenses of the Exchange Agent, accounting, legal,
printing, and related fees and expenses.
TRANSFER TAXES
Holders who tender their Old Notes for exchange will not be obligated to pay any
transfer taxes in connection therewith, except that holders who instruct the
Company to register New Notes in the name of, or request that Old Notes not
tendered or not accepted in the exchange offer be returned to, a person other
than the registered tendering holder will be responsible for the payment of any
applicable transfer tax thereon.
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DESCRIPTION OF NEW NOTES
The New Notes will be issued under an indenture, to be dated as of September 30,
1998 (the "Indenture"), by and among the Company, the Guarantors named therein
and The Bank of New York, as trustee (the "Trustee"). A copy of the Indenture
may be obtained from the Company upon written request. The following summary of
all of the provisions of the Indenture considered by the Company to be material
to a prospective investor in the Notes does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the Trust
Indenture Act of 1939, as amended (the "TIA"), and to all of the provisions of
the Indenture, including the definitions of certain terms therein, and those
terms made a part of the Indenture by reference to the TIA as in effect on the
date of the Indenture. The definitions of certain terms used in the following
summary are set forth below under "-- Certain Definitions." The Trustee also
serves as the Transfer Agent and Registrar for the Common Stock of Chancellor
Media and for all of the preferred stock of Chancellor Media and the Company. In
addition, the Trustee serves as trustee under the Indenture, dated June 16,
1997, governing Chancellor Media's 6% Convertible Subordinated Exchange
Debentures due 2012. Finally, the Trustee serves as a lender and as a
co-syndication agent under the Senior Credit Facility.
The Notes will be unsecured obligations of the Company and will rank pari passu
in right of payment to the 9 3/8% Notes, the 8 3/4% Notes, the 10 1/2% Notes and
the 8 1/8% Notes, and will be subordinated in right of payment to all Senior
Debt of the Company. The Notes will be guaranteed on a senior subordinated basis
by the Guarantors.
The New Notes will be issued in fully registered form only, without coupons, in
denominations of $1,000 and integral multiples thereof. Initially, the Trustee
will act as paying agent and registrar for the New Notes. The New Notes may be
presented for registration or transfer and exchange at the offices of the
registrar, which initially will be the Trustee's principal corporate trust
office. The Company may change any paying agent and registrar without notice to
the holders. The Company will pay principal (and premium, if any) on the New
Notes at the Trustee's principal corporate trust office in New York, New York.
At the Company's option, such amounts may be paid at the Trustee's principal
corporate trust office or by check mailed to the registered address of the
holders.
PRINCIPAL, MATURITY AND INTEREST
The Notes are limited to $750,000,000 aggregate principal amount and will mature
on October 1, 2008. Interest on the Notes will accrue at the rate of 9% per
annum and will be payable semiannually on each April 1 and October 1, commencing
on April 1, 1999, to the persons who are registered holders at the close of
business on March 15 and September 15 immediately preceding the applicable
interest payment date. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
Issue Date. Interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.
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OPTIONAL REDEMPTION
The Notes will be redeemable, at the Company's option, in whole at any time or
in part from time to time, on and after October 1, 2003, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the twelve-month period commencing on October 1 of the years set forth
below, plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003........................................................ 106.50%
2004........................................................ 105.50%
2005........................................................ 104.50%
2006........................................................ 103.50%
2007........................................................ 102.00%
2008........................................................ 100.00%
</TABLE>
In addition, on or prior to October 1, 2000, the Company may, at its option, use
the net cash proceeds of one or more Public Equity Offerings (as defined) to
redeem the Notes, in part, at a redemption price equal to 109% of the principal
amount thereof plus accrued and unpaid interest thereon to the date of
redemption; provided, however, that after any such redemption the aggregate
principal amount of the Notes outstanding must equal at least 75% of the
aggregate principal amount of the Notes originally issued in the Offering. In
order to effect a redemption with proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
Offering and effect such redemption not later than 90 days after the
consummation of such Public Equity Offering.
In addition, at any time on or prior to October 1, 2000, the Notes may also be
redeemed as a whole at the option of the Company upon the occurrence of a Change
of Control (as defined below), upon not less than 30 nor more than 60 days prior
notice (but in no event more than 90 days after the occurrence of such Change of
Control) mailed by first-class mail to each holder's registered address, at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium (as defined below) as of, and accrued and unpaid interest, if
any, to, the date of redemption (the "Redemption Date") (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date in respect of then outstanding Notes).
"Applicable Premium" means, with respect to a Note at any Redemption Date, the
greater of (i) 1.0% of the principal amount of such Note and (ii) (a) the
present value of all remaining required interest and principal payments due on
such Note and all premium payments relating thereto assuming a redemption date
of October 1, 2003, computed using a discount rate equal to the Treasury Rate
(as defined below) plus 100 basis points minus (b) the then outstanding
principal amount of such Note minus (c) accrued interest paid on the redemption
date.
"Treasury Rate" means the yield to maturity at the time of computation of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15 (519) ("Statistical
Release") which has become publicly available at least two business days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source or similar market
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data)) most nearly equal to the period from the Redemption Date to October 1,
2003; provided, however, that if the period from the Redemption Date to October
1, 2003 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the period from the Redemption Date
to October 1, 2003 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
Selection. In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $1,000 in original principal amount or less
will be redeemed in part. If any Note is to be redeemed in part only, the notice
of redemption relating to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion thereof will be issued in the name of the holder thereof upon
cancellation of the original Note.
The Senior Credit Facility restricts the Company's ability to optionally redeem
the Notes.
CHANGE OF CONTROL
The Indenture will provide that upon the occurrence of a Change of Control, each
holder may have the right to require that the Company repurchase all or a
portion of such holder's Notes pursuant to the offer described below (the
"Change of Control Offer"), at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of repurchase.
The Indenture will provide that, prior to the mailing of the notice referred to
below, but in any event within 30 days following the date on which a Change of
Control occurs, the Company covenants to (i) repay in full all Indebtedness
under the Senior Credit Facility (and terminate all commitments thereunder) or
offer to repay in full all such Indebtedness (and terminate all such
commitments) and to repay the Indebtedness owed to (and terminate the
commitments of) each lender which has accepted such offer or (ii) obtain the
requisite consents under the Senior Credit Facility to permit the repurchase of
the Notes as provided below. The Company will first comply with the covenant in
the preceding sentence before it will be required to repurchase Notes pursuant
to the provisions described below; provided that the Company's failure to comply
with the covenant described in the preceding sentence shall constitute an Event
of Default described under clause (iii) under "-- Events of Default."
Within 30 days following the date upon which a Change of Control occurs, the
Company must send, by first class mail, a notice to each holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control Offer.
Such notice will state, among other things, the purchase date, which must be no
earlier than 30 days nor later than 45 days from the date such notice is mailed,
other than as may be required by law (the "Change of Control Payment Date").
Upon compliance by the Company with the covenant described in the immediately
preceding paragraph, the Company's failure to make a Change of Control Offer in
accordance with this "Change of Control" covenant, and, upon the making of a
Change of Control Offer, the failure of the Company to pay, on
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or before the Change of Control Payment Date, the purchase price for the Notes
validly tendered pursuant to the Change of Control Offer, shall constitute an
Event of Default described under clauses (iii) and (ii), respectively, under
"-- Events of Default." Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, properly
endorsed for transfer together with such other customary documents as the
Company may reasonably request, to the paying agent at the address specified in
the notice prior to the close of business on the business day prior to the
Change of Control Payment Date.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the purchase of Notes
pursuant to a Change of Control Offer.
This "Change of Control" covenant will not apply in the event of (i) certain
transactions with Permitted Holders (as defined below) and (ii) changes in a
majority of the Board of Directors of Chancellor Media, CMHC or the Company so
long as a majority of each such Board of Directors continues to consist of
Continuing Directors (as defined below). In addition, this covenant is not
intended to afford holders of the Notes protection in the event of certain
highly leveraged transactions, reorganizations, restructurings, mergers and
other similar transactions that might adversely affect the holders of the Notes
but would not constitute a Change of Control. However, the Indenture will
contain limitations on the ability of the Company to incur additional
Indebtedness and to engage in certain mergers, consolidations and sales of
assets, whether or not a Change of Control is involved. See "-- Certain
Covenants -- Limitation on Incurrence of Additional Indebtedness," "-- Certain
Covenants -- Limitation on Asset Sales," "-- Certain Covenants -- Limitation on
Asset Swaps" and "-- Certain Covenants -- Merger, Consolidation and Sale of
Assets."
If a Change of Control were to occur, there can be no assurance that the Company
would have sufficient funds to pay the purchase price for all Notes that the
Company might be required to purchase. In the event that the Company were
required to purchase Notes pursuant to a Change of Control Offer, the Company
expects that it would need to seek third-party financing to the extent it does
not have available funds to meet its purchase obligations. However, there can be
no assurance that the Company would be able to obtain such financing on
favorable terms, if at all. In addition, the Senior Credit Facility restricts
the Company's ability to repurchase the Notes, including pursuant to a Change of
Control Offer. See "Description of Certain Indebtedness -- Senior Credit
Facility."
With respect to the sale of assets, the phrase "all or substantially all" as
used in the Indenture varies according to the facts and circumstances of the
subject transaction, has no clearly established meaning under relevant law and
is subject to judicial interpretation. Accordingly, in certain circumstances
there may be a degree of uncertainty in ascertaining whether a particular
transaction would involve a disposition of "all or substantially all" of the
assets of a person and therefore it may be unclear whether a Change of Control
has occurred and whether the Notes are subject to a Change of Control Offer.
Without the consent of each holder of the Notes affected thereby, after the
mailing of the notice of the Change of Control Offer, no amendment to the
Indenture may, directly or indirectly, affect the Company's obligation to
purchase the Notes or amend, modify or change the obligation of the Company to
consummate a Change of Control Offer or waive any default in the performance
thereof or modify any of the provisions or definitions with
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respect to any such offer. In addition, the Trustee may not waive the right of
any holder of the Notes to require the repurchase of his or her Notes upon a
Change of Control.
SUBORDINATION
The payment of all Obligations on the Notes will be subordinated and junior in
right of payment to the prior payment in full in cash or Cash Equivalents (or
such payment duly provided for to the satisfaction of the holders of Senior
Debt) of all Obligations on Senior Debt. Upon any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshalling of assets
of the Company or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to the Company or its property, whether
voluntary or involuntary, all Obligations due or to become due upon all Senior
Debt will first be paid in full in cash or Cash Equivalents (or such payment
duly provided for to the satisfaction of the holders of Senior Debt) before any
payment or distribution of any kind or character is made on account of any
Obligations on the Notes, or for the acquisition of any of the Notes for cash or
property or otherwise. If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or otherwise,
of any principal of, or interest on, or any other amounts owing with respect to
any Senior Debt, no payment of any kind or character (except (i) in Qualified
Capital Stock issued by the Company to pay interest on the Notes or issued in
exchange for the Notes, (ii) in securities substantially identical to the Notes
issued by the Company in payment of interest accrued thereon or (iii) in
securities issued by the Company which are subordinated to the Senior Debt at
least to the same extent as the Notes and having a Weighted Average Life to
Maturity at least equal to the remaining Weighted Average Life to Maturity of
the Notes (the issuance of such subordinated securities to be consented to by
the holders of at least a majority of the outstanding amount of Senior Debt
consisting of each class of Designated Senior Debt then outstanding, which
subordinated securities will be issued in exchange for outstanding Notes or to
pay interest accrued on outstanding Notes)), will be made by the Company or any
other Person on behalf of the Company with respect to any Obligations on the
Notes or to acquire any of the Notes for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing (or if such an
event of default would occur upon any payment with respect to the Notes or would
arise upon the passage of time as a result of such payment) with respect to any
Designated Senior Debt (as such event of default is defined in the instrument
creating or evidencing such Designated Senior Debt) and such event of default
permits the holders of such Designated Senior Debt then outstanding to
accelerate the maturity thereof and if the Representative for the respective
issue of Designated Senior Debt gives written notice of the event of default to
the Trustee (a "Default Notice"), then, unless and until all such events of
default have been cured or waived or have ceased to exist or the Company and the
Trustee receive notice from the Representative for the respective issue of
Designated Senior Debt terminating the Blockage Period (as defined below),
during the 180 days after the delivery of such Default Notice (the "Blockage
Period"), neither the Company nor any other Person on behalf of the Company will
make any payment of any kind or character (except (i) in Qualified Capital Stock
issued by the Company to pay interest on the Notes or issued in exchange for the
Notes, (ii) in securities substantially identical to the Notes issued by the
Company in payment of interest accrued thereon or (iii) in securities issued by
the Company which are subordinated to the Senior Debt at least to the
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same extent as the Notes and having a Weighted Average Life to Maturity at least
equal to the remaining Weighted Average Life to Maturity of the Notes (the
issuance of such subordinated securities to be consented to by the holders of at
least a majority of the outstanding amount of Senior Debt consisting of each
class of Designated Senior Debt then outstanding, which subordinated securities
will be issued in exchange for outstanding Notes or to pay interest accrued on
outstanding Notes)) with respect to any Obligations on the Notes or to acquire
any of the Notes for cash or property or otherwise. Notwithstanding anything
herein to the contrary, in no event will a Blockage Period extend beyond 180
days from the date the payment on the Notes was due and only one such Blockage
Period may be commenced within any 360 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any Blockage
Period with respect to the Designated Senior Debt initiating such Blockage
Period shall be, or be made, the basis for commencement of a second Blockage
Period by the Representative of such Designated Senior Debt whether or not
within a period of 360 consecutive days, unless such event of default has been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provision under which an event of default previously existed or
was continuing, shall constitute a new event of default for this purpose).
By reason of such subordination, in the event of the insolvency of the Company,
creditors of the Company who are not holders of Senior Debt, including the
holders of the Notes, may recover less, ratably, than holders of Senior Debt.
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants.
Limitation on Incurrence of Additional Indebtedness. The Indenture will provide
that neither the Company nor any of its Subsidiaries will, directly or
indirectly, create, incur, assume, guarantee, acquire or become liable for,
contingently or otherwise (collectively "incur"), any Indebtedness other than
Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company
or any Subsidiary may incur Indebtedness if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's Leverage
Ratio is less than 7.0 to 1.
Limitation on Restricted Payments. The Indenture will provide that neither the
Company nor any of its Subsidiaries will, directly or indirectly, (a) declare or
pay any dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company) on shares of the Company's
Capital Stock, (b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to acquire
shares of any class of such Capital Stock, other than the exchange of such
Capital Stock or any warrants, rights or options to acquire shares of any class
of such Capital Stock for Qualified Capital Stock or warrants, rights or options
to acquire Qualified Capital Stock, (c) make any principal payment on, purchase,
defease, redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Indebtedness of the Company or its Subsidiaries that is
subordinate or junior in right of payment to the Notes, or (d) make any
Investment (other than Permitted Investments) (each of the
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foregoing prohibited actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if, at the time of such Restricted
Payment or immediately after giving effect thereto, (i) a Default or an Event of
Default has occurred and is continuing, (ii) the Company is not able to incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with the "Limitation on Incurrence of Additional Indebtedness"
covenant, or (iii) the aggregate amount of Restricted Payments made by the
Company on or after the Merger Date, together with the aggregate amount of
Restricted Payments made by CRBC subsequent to the 9 3/8% Notes Issue Date and
through September 4, 1997 (the amount expended for such purposes, if other than
in cash, being the fair market value of such property as determined by the
respective Board of Directors in good faith) exceeds the sum of: (A) (x)100% of
the aggregate Consolidated EBITDA of CRBC from the 9 3/8% Notes Issue Date
through September 4, 1997, plus 100% of the aggregate Consolidated EBITDA of the
Company from and after the Merger Date (or, in the event that either such
Consolidated EBITDA shall be a deficit, minus 100% of such deficit), to the most
recent date for which financial information is available to the Company, taken
as one accounting period, less (y) 1.4 times Consolidated Interest Expense for
the same entities and for the same periods, plus (B) 100% of the aggregate net
proceeds, including the fair market value of property other than cash as
determined by the Board of Directors in good faith, received by the Company from
any Person (other than a Subsidiary of the Company) from the issuance and sale
on or subsequent to the Merger Date of Qualified Capital Stock of the Company,
plus 100% of the aggregate net proceeds, including the fair market value of
property other than cash as previously determined by the board of directors of
CRBC in good faith, previously received by CRBC from any Person (other than a
Subsidiary of CRBC) from the issuance and sale on or subsequent to the 9 3/8%
Notes Issue Date of Qualified Capital Stock of CRBC (excluding any net proceeds
from issuances and sales financed directly or indirectly using funds borrowed
from the Company or any Subsidiary of the Company or from CRBC or any Subsidiary
of CRBC, respectively, until and to the extent such borrowing is repaid, but
including the proceeds from the issuance and sale of any securities convertible
into or exchangeable for Qualified Capital Stock to the extent such securities
are so converted or exchanged and including any additional proceeds received by
the Company or CRBC, respectively, upon such conversion or exchange), plus (C)
without duplication of any amount included in clause (iii)(B) above, 100% of the
aggregate net proceeds, including the fair market value of property other than
cash (valued as provided in clause (iii)(B) above), received by the Company as a
capital contribution on or subsequent to the Merger Date, plus 100% of the
aggregate net proceeds, including the fair market value of property other than
cash (valued as provided in clause (iii)(B) above), previously received by CRBC
as a capital contribution on or subsequent to the 9 3/8% Notes Issue Date
(excluding the net proceeds from one or more Public Equity Offerings by
Chancellor Media or CMHC to the extent used to redeem the Notes on or after the
date of the Indenture).
Notwithstanding the foregoing, these provisions do not prohibit: (1) the payment
of any dividend or the making of any distribution within 60 days after the date
of its declaration if the dividend or distribution would have been permitted on
the date of declaration; (2) the acquisition of Capital Stock or warrants,
options or other rights to acquire Capital Stock either (i) solely in exchange
for shares of Qualified Capital Stock or warrants, options or other rights to
acquire Qualified Capital Stock, or (ii) through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the
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Company) of shares of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock; (3) the acquisition of Indebtedness
of the Company that is subordinate or junior in right of payment to the Notes,
either (i) solely in exchange for shares of Qualified Capital Stock (or
warrants, options or other rights to acquire Qualified Capital Stock) or for
Indebtedness of the Company which is subordinate or junior in right of payment
to the Notes, at least to the extent that the Indebtedness being acquired is
subordinated to the Notes and has a Weighted Average Life to Maturity no less
than that of the Indebtedness being acquired or (ii) through the application of
the net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock (or warrants,
options or other rights to acquire Qualified Capital Stock) or Indebtedness of
the Company which is subordinate or junior in right of payment to the Notes, at
least to the extent that the Indebtedness being acquired is subordinated to the
Notes and has a Weighted Average Life to Maturity no less than that of the
Indebtedness being refinanced; (4) payments by CRBC to fund the operating
expenses of Chancellor Broadcasting from the 9 3/8% Notes Issue Date through
September 4, 1997 and by the Company to fund the operating expenses of CMHC from
and after the Merger Date, in each case in an amount not to exceed $500,000 per
annum; (5) payments by CRBC to Chancellor Broadcasting from the 9 3/8% Notes
Issue Date through September 4, 1997 and by the Company to CMHC from and after
the Merger Date, respectively, in each case to make payments pursuant to (a) the
Financial Monitoring and Oversight Agreements or (b) the Tax Sharing Agreement;
(6) payments by (a) CRBC to repurchase or to enable Chancellor Broadcasting to
repurchase Capital Stock or other securities of Chancellor Broadcasting from
employees of Chancellor Broadcasting or CRBC in each case, from the 9 3/8% Notes
Issue Date through September 4, 1997, and (b) by the Company to repurchase or to
enable CMHC to repurchase Capital Stock or other securities of CMHC from
employees of CMHC or the Company, in each case, after the Merger Date, in an
aggregate amount not to exceed $5,000,000; (7) payments by CRBC to Chancellor
Broadcasting from the 9 3/8% Notes Issue Date through September 4, 1997, or by
the Company to CMHC from and after the Merger Date, in each case, to enable
Chancellor Broadcasting or CMHC, respectively, to redeem or repurchase stock
purchase or similar rights in an aggregate amount not to exceed $500,000; (8)
payments, not to exceed $100,000 in the aggregate, by CRBC to Chancellor
Broadcasting from the 9 3/8% Notes Issue Date through September 4, 1997,
together with payments by the Company to CMHC after the Merger Date, in each
case, to enable Chancellor Broadcasting or CMHC, respectively, to make cash
payments to holders of its Capital Stock in lieu of the issuance of fractional
shares of its Capital Stock; (9) payments made pursuant to any merger,
consolidation or sale of assets effected in accordance with the "Merger,
Consolidation and Sale of Assets" covenant; provided, however, that no such
payment may be made pursuant to this clause and (9) unless, after giving effect
to such transaction (and the incurrence of any Indebtedness in connection
therewith and the use of the proceeds thereof), the Company would be able to
incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with the "Limitation on Incurrence of Additional Indebtedness"
covenant such that after incurring that $1.00 of additional Indebtedness, the
Leverage Ratio would be less than 5.5 to 1; provided, however, that in the case
of clauses (5)(a), (6), (7), (8) and (9), no Default or Event of Default shall
have occurred or be continuing at the time of such payment or as a result
thereof. In determining the aggregate amount of Restricted Payments made by the
Company on or subsequent to the Merger Date and the aggregate amount of
Restricted
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Payments made by CRBC subsequent to the 9 3/8% Notes Issue Date and through
September 4, 1997, amounts expended pursuant to clauses (1), (2), (3) (but only
to the extent that Indebtedness is acquired in exchange for, or with the net
proceeds from, the issuance of Qualified Capital Stock or warrants, options or
other rights to acquire Qualified Capital Stock), (5)(a), (6), (7), (8) and (9)
(including any amounts previously expended by CRBC pursuant to clauses (1), (2)
(3) (but only to the extent that Indebtedness is acquired in exchange for, or
with the net proceeds from, the issuance of Qualified Capital Stock or warrants,
options or other rights to acquire Qualified Capital Stock), (5)(a), (6), (7),
(8) and (9) under the 'Limitation on Restricted Payments' section of the 9 3/8%
Indenture) shall be included in such calculation.
Limitation on Asset Sales. The Indenture will provide that neither the Company
nor any of its Subsidiaries will consummate an Asset Sale unless (i) the Company
or the applicable Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value of the assets
sold or otherwise disposed of (as determined in good faith by management of the
Company or, if such Asset Sale involves consideration in excess of $2,500,000 by
the Board of Directors, as evidenced by a board resolution), (ii) at least 75%
of the consideration received by the Company or the Subsidiary, as the case may
be, from such Asset Sale is cash or Cash Equivalents (other than in the case
where the Company is exchanging all or substantially all the assets of one or
more broadcast businesses operated by the Company (including by way of the
transfer of capital stock) for all or substantially all the assets (including by
way of the transfer of capital stock) constituting one or more broadcast
businesses operated by another Person, in which event the foregoing requirement
with respect to the receipt of cash or Cash Equivalents shall not apply) and is
received at the time of such disposition and (iii) upon the consummation of an
Asset Sale, the Company applies, or causes such Subsidiary to apply, such Net
Cash Proceeds within 180 days of receipt thereof either (A) to repay the
principal of any Senior Debt (and, to the extent such Senior Debt relates to
principal under a revolving credit or similar facility, to obtain a
corresponding reduction in the commitments thereunder), (B) to reinvest, or to
be contractually committed to reinvest pursuant to a binding agreement, in
Productive Assets and, in the latter case, to have so reinvested within 360 days
of the date of receipt of such Net Cash Proceeds, or (C) to purchase Notes (pro
rata among the holders of Notes tendered to the Company for purchase, based upon
the aggregate principal amount of the Notes so tendered) tendered to the Company
for purchase at a price equal to 100% of the principal amount thereof, plus
accrued interest thereon to the date of purchase, pursuant to an offer to
purchase made by the Company as set forth below (a "Net Proceeds Offer");
provided, however, that, prior to making any Net Proceeds Offer, the Company
shall, to the extent required pursuant to the 9 3/8% Indenture as in effect on
the Issue Date, offer to use such Net Proceeds to repurchase and use all or a
portion of such Net Proceeds to repurchase 9 3/8% Notes and then, to the extent
required pursuant to the 8 3/4% Indenture as in effect on the Issue Date, offer
to use the remaining Net Proceeds to repurchase 8 3/4% Notes and then, to the
extent required pursuant to the 10 1/2% Indenture as in effect on the Issue
Date, offer to use the remaining Net Proceeds to repurchase 10 1/2% Notes, and
then, to the extent required pursuant to the 8 1/8% Indenture as in effect on
the Issue Date, offer to use the remaining Net Proceeds to repurchase 8 1/8%
Notes; in which event the Company shall be required to use only the Net Proceeds
remaining after such repurchases to make the Net Proceeds Offer contemplated by
this covenant, provided further, that if at any time any non-cash consideration
received by the Company or any Subsidiary of the Company,
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as the case may be, in connection with any Asset Sale is converted into or sold
or otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with clause (iii) above; provided, further that
the Company may defer making a Net Proceeds Offer until the aggregate Net Cash
Proceeds from Asset Sales (taking into account any Net Cash Proceeds used to
repurchase 9 3/8% Notes, 8 3/4% Notes, 10 1/2% Notes and 8 1/8% Notes pursuant
to the second immediately preceding proviso) to be applied equals or exceeds
$5,000,000.
Subject to the deferral right set forth in the final proviso of the preceding
paragraph, each notice of a Net Proceeds Offer will be mailed, by first class
mail, to holders of Notes as shown on the applicable register of holders of
Notes not more than 180 days after the relevant Asset Sale or, in the event the
Company or a Subsidiary has entered into a binding agreement as provided in (B)
above, within 180 days following the termination of such agreement but in no
event later than 360 days after the relevant Asset Sale. Such notice will
specify, among other things, the purchase date (which will be no earlier than 30
days nor later than 45 days from the date such notice is mailed, except as
otherwise required by law) and will otherwise comply with the procedures set
forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, holders
of Notes may elect to tender their Notes in whole or in part in integral
multiples of $1,000. To the extent holders properly tender Notes in an amount
exceeding the Net Proceeds Offer, subject to the limitations set forth in the
immediately preceding paragraph, the Company shall select the Notes to be
repurchased on a pro rata basis (based upon the aggregate principal amount of
Notes tendered). To the extent that the aggregate principal amount of Notes
tendered pursuant to any Net Proceeds Offer is less than the amount of Net Cash
Proceeds subject to such Net Proceeds Offer, the Company may use any remaining
portion of such Net Cash Proceeds not required to fund the repurchase of
tendered Notes for any purposes otherwise permitted by the Indenture. Upon the
consummation of any Net Proceeds Offer, the amount of Net Cash Proceeds subject
to any future Net Proceeds Offer from the Asset Sales giving rise to such Net
Cash Proceeds shall be deemed to be zero.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of Notes
pursuant to a Net Proceeds Offer.
Limitation on Asset Swaps. The Indenture will provide that the Company will not,
and will not permit any Subsidiary to, engage in any Asset Swaps, unless: (i) at
the time of entering into the agreement to swap assets and immediately after
giving effect to the proposed Asset Swap, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof; (ii)
the Company would, after giving pro forma effect to the proposed Asset Swap,
have been permitted to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with the "Limitation on Incurrence of
Additional Indebtedness" covenant; (iii) the respective fair market values of
the assets being purchased and sold by the Company or any of its Subsidiaries
(as determined in good faith by the management of the Company or, if such Asset
Swap includes consideration in excess of $2,500,000, by the Board of Directors,
as evidenced by a board resolution) are substantially the same at the time of
entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of
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the asset or assets being acquired by the Company and its Subsidiaries shall not
be significantly greater than the percentage of any decline in the fair market
value (determined as aforesaid) of the assets being disposed of by the Company,
calculated from the time the agreement to swap assets was entered into;
provided, however, that this covenant shall not apply to any of the transactions
of the Company and its subsidiaries pending as of the date of this Prospectus.
Limitations on Transactions with Affiliates. The Indenture will provide that
neither the Company nor any of its Subsidiaries will, directly or indirectly,
enter into or permit to exist any transaction (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with or for the benefit of any of its Affiliates (other than
transactions between the Company and a Wholly-Owned Subsidiary of the Company or
among Wholly-Owned Subsidiaries of the Company) (an "Affiliate Transaction"),
other than Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction on an
arm's-length basis from a person that is not an Affiliate; provided, however,
that for a transaction or series of related transactions involving value of
$1,000,000 or more, such determination will be made in good faith by a majority
of members of the Board of Directors of the Company and by a majority of the
disinterested members of the Board of Directors of the Company, if any;
provided, further, that for a transaction or series of related transactions
involving value of $5,000,000 or more, the Board of Directors of the Company has
received an opinion from a nationally recognized investment banking firm that
such Affiliate Transaction is fair, from a financial point of view, to the
Company or such Subsidiary. The foregoing restrictions will not apply to
reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder, or to any obligations of the Company under
the Financial Monitoring and Oversight Agreements, the Tax Sharing Agreement or
any employment agreement with any officer of the Company (provided that each
amendment of any of the foregoing agreements shall be subject to the limitations
of this covenant).
Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Indenture will provide that neither the Company nor any of its Subsidiaries
will, directly or indirectly, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distributions on its Capital Stock; (b)
make loans or advances or pay any Indebtedness or other obligation owed to the
Company or any of its Subsidiaries; or (c) transfer any of its property or
assets to the Company, except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law, (2) the Indenture, (3) customary
non-assignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary, (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, (5) agreements permitted under the 9 3/8%
Indenture, the 8 3/4% Indenture, the 10 1/2% Indenture and the 8 1/8% Indenture
existing on the Issue Date (including the Credit Agreement and Senior Credit
Facility, as applicable), as such agreements are from time to time in effect;
provided, however, that any amendments or modifications of such agreements which
affect the encumbrances or restrictions of the types subject to this covenant
shall not result in such encumbrances or restrictions being less favorable to
the Company in any material respect, as determined in good faith by the Board of
Directors of the Company, than the
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provisions as in effect before giving effect to the respective amendment or
modification, (6) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4) or (5) above or any other agreement
evidencing Indebtedness permitted under the Indenture; provided, however, that
the provisions relating to such encumbrance or restriction contained in any such
refinancing, replacement or substitution agreement or any such other agreement
are not less favorable to the Company in all material respects as determined in
good faith by the Board of Directors of the Company than the provisions relating
to such encumbrance or restriction contained in agreements referred to in such
clause (2), (4) or (5), or (7) restrictions on the transfer of assets subject to
any Lien permitted under the Indenture imposed by the holder of such Lien.
Prohibition on Incurrence of Senior Subordinated Debt. The Indenture will
prohibit the Company from incurring or suffering to exist Indebtedness that is
senior in right of payment to the Notes and is expressly subordinate in right of
payment to any other Indebtedness of the Company.
Limitation on Preferred Stock of Subsidiaries. The Indenture will provide that
the Company will not permit any of its Subsidiaries to issue any Preferred Stock
(other than to the Company or to a Wholly-Owned Subsidiary of the Company) or
permit any Person (other than the Company or a Wholly-Owned Subsidiary of the
Company) to own any Preferred Stock of a Subsidiary (other than Acquired
Preferred Stock; provided that at the time the issuer of such Acquired Preferred
Stock becomes a Subsidiary of the Company or merges with the Company or any of
its Subsidiaries, and after giving effect to such transaction, the Company shall
be able to incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with the "Limitation on Incurrence of Additional
Indebtedness" covenant).
Limitation on Liens. The Indenture will provide that neither the Company nor any
of its Subsidiaries will create, incur, assume or suffer to exist any Liens upon
any of their respective assets, except for (a) Permitted Liens, (b) Liens to
secure Senior Debt or guarantees thereof permitted under the Indenture, (c)
Liens permitted under the 9 3/8% Indenture, the 8 3/4% Indenture, the 10 1/2%
Indenture and the 8 1/8% Indenture existing on the Issue Date, (d) Liens in
favor of the Trustee, (e) Liens to secure Guarantor Senior Debt permitted under
the Indenture, and (f) any Lien to secure the replacement, refunding, extension
or renewal, in whole or in part, of any Indebtedness described in the foregoing
clauses; provided that, to the extent any such clause limits the amount secured
or the asset subject to such Liens, no extension or renewal will increase the
assets subject to such Liens or the amount secured thereby beyond the assets or
amounts set forth in such clauses.
Limitation on Sale and Leaseback Transactions. The Indenture will provide that
neither the Company nor any of its Subsidiaries will enter into any Sale and
Leaseback Transaction, except that the Company or any Subsidiary may enter into
a Sale and Leaseback Transaction if, immediately prior thereto, and after giving
effect to such Sale and Leaseback Transaction (the Indebtedness thereunder being
equivalent to the Attributable Value thereof) the Company could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with the "Limitation on Incurrence of Additional Indebtedness"
covenant.
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Guarantees of Certain Indebtedness. The Indenture will provide that the Company
will not permit any of its Subsidiaries, directly or indirectly, to incur,
guarantee or secure through the granting of Liens, the payment of any
Indebtedness under the Senior Credit Facility or any refunding or refinancing
thereof, in each case, unless such Subsidiary, the Company and the Trustee
execute and deliver a supplemental indenture pursuant to which such Subsidiary
becomes a Guarantor of the Notes and which evidences such Subsidiary's Guarantee
of the Notes, such Guarantee to be a senior subordinated unsecured obligation of
such Subsidiary. Neither the Company nor any such Guarantor shall be required to
make a notation on the Notes or its Guarantee to reflect any such subsequent
Guarantee. Nothing in this covenant shall be construed to permit any Subsidiary
of the Company to incur Indebtedness otherwise prohibited by the "Limitation of
Incurrence of Additional Indebtedness" covenant.
Limitation on Line of Business. The Indenture will provide that for so long as
any Notes are outstanding, the Company and its Subsidiaries will engage solely
in the ownership and operation of broadcast businesses or businesses related
thereto, including, without limitation, media representation, sale of
advertising and such other activities as are incidental or similar or related
thereto.
Merger, Consolidation and Sale of Assets. The Indenture will provide that the
Company may not, in a single transaction or a series of related transactions,
consolidate with or merge with or into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, another
Person or adopt a plan of liquidation unless (i) either (A) the Company is the
survivor of such merger or consolidation or (B) the surviving or transferee
Person is a corporation, partnership or trust organized and existing under the
laws of the United States, any state thereof or the District of Columbia and
such surviving or transferee Person expressly assumes by supplemental indenture
all of the obligations of the Company under the Notes and the Indenture; (ii)
immediately after giving effect to such transaction and the use of proceeds
therefrom (on a pro forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such transaction), the Company or
the surviving or transferee Person is able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with the
"Limitation on Incurrence of Additional Indebtedness" covenant; (iii)
immediately after giving effect to such transaction (including any Indebtedness
incurred or anticipated to be incurred in connection with the transaction) no
Default or Event of Default has occurred and is continuing; and (iv) the Company
has delivered to the Trustee an Officers' Certificate and Opinion of Counsel,
each stating that such consolidation, merger or transfer complies with the
Indenture, that the surviving Person agrees by supplemental indenture to be
bound thereby, and that all conditions precedent in the Indenture relating to
such transaction have been satisfied. For purposes of the foregoing, the
transfer (by lease, assignment, sale or otherwise, in a single transaction or
series of related transactions) of all or substantially all of the properties
and assets of one or more Subsidiaries, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company, will be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
GUARANTEES
Each Guarantor will fully and unconditionally guarantee, jointly and severally,
to each holder and the Trustee, subject to subordination provisions
substantially the same as those
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described above, the full and prompt payment of principal of and interest on the
Notes, and of all other obligations under the Indenture.
The Indebtedness evidenced by each Guarantee (including the payment of principal
of, premium, if any, and interest on the Notes) is subordinated to Guarantor
Senior Debt (defined with respect to the Indebtedness of a Guarantor in the same
manner as Senior Debt is defined with respect to the Company) on the same terms
as the Notes are subordinated to Senior Debt and will rank pari passu to the
Guarantor's guarantees of the 9 3/8% Notes, the 8 3/4% Notes, the 10 1/2% Notes
and the 8 1/8% Notes. See "-- Subordination." In addition, the Guarantors have
substantial additional Guarantor Senior Debt (relating to guarantees of the
borrowings under the Senior Credit Facility).
The obligations of each Guarantor are limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the Senior Credit
Facility) and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of the Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a Guarantee
are entitled to a contribution from each other Guarantor in a pro rata amount
based on the Adjusted Net Assets of each Guarantor.
Each Guarantor may consolidate with or merge into or sell its assets to the
Company or to another Guarantor without limitation. Each Guarantor may
consolidate with or merge into or sell all or substantially all its assets to a
corporation, partnership or trust other than the Company or another Guarantor
(whether or not affiliated with the Guarantor). Upon the sale or disposition of
a Guarantor (or all or substantially all of its assets) to a Person (whether or
not an Affiliate of such Guarantor) which is not a Subsidiary of the Company,
which is otherwise in compliance with the Indenture, such Guarantor shall be
deemed released from all its obligations under the Indenture and its Guarantee
and such Guarantee shall terminate; provided, however, that any such termination
shall occur only to the extent that all obligations of such Guarantor under the
Credit Agreement or the Senior Credit Facility, as applicable, and all of its
guarantees of, and under all of its pledges of assets or other security
interests which secure, Indebtedness of the Company shall also terminate upon
such release, sale or transfer; provided, further, that the consideration
received by the Company in connection with such sale or other disposition shall
be applied in accordance with the covenant. See "-- Certain
Covenants -- Limitation on Asset Sales."
EVENTS OF DEFAULT
The following events will be defined in the Indenture as "Events of Default":
(i) the failure to pay interest on the Notes when the same becomes due and
payable and the Default continues for a period of 30 days (whether or not such
payment is prohibited by the subordination provisions of the Indenture); (ii)
the failure to pay the principal on any Notes, when such principal becomes due
and payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by the subordination provisions of the Indenture); (iii) a
default in the observance or performance of any other covenant or agreement
contained in the Notes or the Indenture which default continues for a period of
30 days after the Company receives written notice thereof specifying the default
from the
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Trustee or holders of at least 25% in aggregate principal amount of outstanding
Notes; (iv) the failure to pay at the final stated maturity (giving effect to
any extensions thereof) the principal amount of any Indebtedness of the Company
or any Subsidiary of the Company, or the acceleration of the final stated
maturity of any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final stated
maturity (giving effect to any extensions thereof) or which has been
accelerated, aggregates $5,000,000 or more at any time, in each case after a
10-day period during which such default shall not have been cured or such
acceleration rescinded; (v) one or more judgments in an aggregate amount in
excess of $5,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the Company or any of its
Significant Subsidiaries and such judgments remain undischarged or unstayed for
a period of 60 days after such judgment or judgments become final and non-
appealable; and (vi) certain events of bankruptcy, insolvency or reorganization
affecting the Company or any of its Significant Subsidiaries.
Upon the happening of any Event of Default specified in the Indenture, the
Trustee may, and the Trustee upon the request of holders of 25% in principal
amount of the Notes shall, or the holders of at least 25% in principal amount of
outstanding Notes may, declare the principal of and accrued but unpaid interest,
if any, on all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "Acceleration Notice"), and the same (i)
shall become immediately due and payable or (ii) if there are any amounts
outstanding under the Credit Agreement or the Senior Credit Facility, as
applicable, will become due and payable upon the first to occur of an
acceleration under the Credit Agreement or the Senior Credit Facility, as
applicable, or five Business Days after receipt by the Company and the
Representative under the Credit Agreement or the Senior Credit Facility, as
applicable of such Acceleration Notice (unless all Events of Default specified
in such Acceleration Notice have been cured or waived). If an Event of Default
with respect to bankruptcy proceedings relating to the Company occurs and is
continuing, then such amount will ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
holder of the Notes.
The Indenture will provide that, at any time after a declaration of acceleration
with respect to the Notes as described in the preceding paragraph, the holders
of a majority in principal amount of the Notes then outstanding (by notice to
the Trustee) may rescind and cancel such declaration and its consequences if (i)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default have been cured or
waived except nonpayment of principal or interest on the Notes that has become
due solely by such declaration of acceleration, (iii) to the extent the payment
of such interest is lawful, interest (at the same rate specified in the Notes)
on overdue installments of interest and overdue payments of principal which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its expenses, disbursements and advances and (v) in the event of
the cure or waiver of a Default or Event of Default of the type described in
clause (vi) of the description of Events of Default in the first paragraph
above, the Trustee has received an Officers' Certificate and an Opinion of
Counsel that such Default or Event of Default has been cured or waived. The
holders of a majority in principal amount of the Notes may waive any existing
Default
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or Event of Default under the Indenture, and its consequences, except a default
in the payment of the principal of or interest on any Notes.
The Company is required to deliver to the Trustee, within 120 days after the end
of the Company's fiscal year, a certificate indicating whether the signing
officers know of any Default or Event of Default that occurred during the
previous year and whether the Company has complied with its obligations under
the Indenture. In addition, the Company will be required to notify the Trustee
of the occurrence and continuation of any Default or Event of Default within
five business days after the Company becomes aware of the same.
Subject to the provisions of the Indenture relating to the duties of the Trustee
in case an Event of Default thereunder should occur and be continuing, the
Trustee will be under no obligation to exercise any of the rights or powers
under the Indenture at the request or direction of any of the holders of the
Notes unless such holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense. Subject to such provision for
security or indemnification and certain limitations contained in the Indenture,
the holders of a majority in principal amount of the outstanding Notes have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
The Company may terminate its obligations under the Indenture at any time, and
the obligations of the Guarantors with respect thereto shall terminate, by
delivering all outstanding Notes to the Trustee for cancellation and paying all
sums payable by it thereunder. The Company, at its option, (i) will be
discharged from any and all obligations with respect to the Notes, and each
Guarantor will be discharged from any and all obligations with respect to its
Guarantee (except for certain obligations of the Company to register the
transfer or exchange of such Notes, replace stolen, lost or mutilated Notes,
maintain paying agencies and hold moneys for payment in trust) or (ii) need not
comply with certain of the restrictive covenants with respect to the Indenture,
if the Company deposits with the Trustee, in trust, U.S. Legal Tender or U.S.
Government Obligations or a combination thereof which, through the payment of
interest thereon and principal in respect thereof in accordance with their
terms, will be sufficient to pay all the principal of and interest on the Notes
on the dates such payments are due in accordance with the terms of such Notes as
well as the Trustee's fees and expenses. To exercise either such option, the
Company is required to deliver to the Trustee (A) an Opinion of Counsel or a
private letter ruling issued to the Company by the IRS to the effect that the
holders of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of the deposit and related defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had not been exercised
and, in the case of an Opinion of Counsel furnished in connection with a
Discharge pursuant to clause (i) above, accompanied by a private letter ruling
issued to the Company by the IRS to such effect, (B) subject to certain
qualifications, an Opinion of Counsel to the effect that funds so deposited will
not be subject to avoidance under applicable Bankruptcy Law, and (C) an
Officers' Certificate and an Opinion of Counsel to the effect that the Company
has complied with all conditions precedent to the defeasance. Notwithstanding
the foregoing, the Opinion of Counsel required by clause (A) above need not be
delivered if all Notes not therefore delivered to the Trustee for cancellation
(i) have become due and payable, (ii) will
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become due and payable on the maturity date within one year, or (iii) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
REPORTS TO HOLDERS
The Company will file with the Trustee and provide to the holders of the Notes,
within 15 days after it files them with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations
prescribe) which the Company files with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. In the event the Company is no longer required to
furnish such reports to its securityholders pursuant to the Exchange Act, the
Company will cause its consolidated financial statements, comparable to those
which would have been required to appear in annual or quarterly reports, to be
delivered to the holders of the Notes.
MODIFICATION OF THE INDENTURE
From time to time, the Company and the Trustee, together, without the consent of
the holders of the Notes, may amend or supplement the Indenture for certain
specified purposes, including curing ambiguities, defects or inconsistencies.
Other modifications and amendments of the Indenture may be made with the consent
of the holders of a majority in principal amount of the then outstanding Notes,
except that, without the consent of each holder of the Notes affected thereby,
no amendment may, directly or indirectly: (i) reduce the amount of Notes whose
holders must consent to an amendment; (ii) reduce the rate of or change the time
for payment of interest, including defaulted interest, on any Notes; (iii)
reduce the principal of or change the fixed maturity of any Notes, or change the
date on which any Notes may be subject to redemption or repurchase, or reduce
the redemption or repurchase price therefor; (iv) make any Notes payable in
money other than that stated in the Notes; (v) make any change in provisions of
the Indenture protecting the right of each holder of an Exchange Note to receive
payment of principal of and interest on such Exchange Note on or after the due
date thereof or to bring suit to enforce such payment or permitting holders of a
majority in principal amount of the Notes to waive Defaults or Events of
Default; or (vi) after the Company's obligation to purchase the Notes arises
under the Indenture, amend, modify or change the obligation of the Company to
make or consummate a Change of Control Offer or a Net Proceeds Offer or waive
any default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any other terms used herein for which no definition is
provided.
"8 1/8% Notes" means the $500 million aggregate principal amount of 8 1/8%
Senior Subordinated Notes due 2007 of the Company, used pursuant to an indenture
dated as of December 22, 1997, as the same may be modified or amended from time
to time and future refinancings thereof.
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"8 3/4% Notes" means the $200.0 million aggregate principal amount of 8 3/4%
Senior Subordinated Notes due 2007 of the Company, issued pursuant to an
indenture, dated as of June 24, 1997, as amended, as the same may be modified or
amended from time to time and future refinancings thereof.
"9 3/8% Notes" means the $200.0 million aggregate principal amount of 9 3/8%
Senior Subordinated Notes due 2004 of the Company, issued pursuant to an
indenture, dated as of February 14, 1996, as amended, as the same may be
modified or amended from time to time and future refinancings thereof.
"9 3/8% Notes Issue Date" means February 14, 1996.
"10 1/2% Notes" means the $100.0 million aggregate principal amount of 10 1/2%
Senior Subordinated Notes due 2007 of the Company, issued pursuant to an amended
and restated indenture, dated as of December 19, 1996 and amended and restated
as of October 28, 1997, as amended, as the same may be modified or amended from
time to time and future refinancings thereof.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquired Preferred Stock" means Preferred Stock of any Person at the time such
Person becomes a Subsidiary of the Company or at the time it merges or
consolidates with the Company or any of its Subsidiaries and not issued by such
Person in connection with, or in anticipation or contemplation of, such
acquisition, merger or consolidation.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of the
amount by which (x) the fair value of the property of such Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under the Guarantee
of such Guarantor at such date, and (y) the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guarantor in respect of the obligations of such Subsidiary under the Guarantee),
excluding debt in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any Person means any other Person who, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Asset Acquisition" means (i) an Investment by the Company or any Subsidiary of
the Company in any other Person pursuant to which such Person shall become a
Subsidiary of the Company or shall be consolidated or merged with the Company or
any Subsidiary of the Company or (ii) the acquisition by the Company or any
Subsidiary of the Company of assets of any Person comprising a division or line
of business of such Person.
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"Asset Sale" means any direct or indirect sale, issuance, conveyance, transfer,
lease (other than operating leases entered into in the ordinary course of
business), assignment or other transfer for value by the Company or any of its
Subsidiaries (excluding any Sale and Leaseback Transaction or any pledge of
assets or stock by the Company or any of its Subsidiaries) to any Person other
than the Company or a Wholly-Owned Subsidiary of the Company of (i) any Capital
Stock of any Subsidiary of the Company or (ii) any other property or assets of
the Company or any Subsidiary of the Company other than in the ordinary course
of business; provided, however, that for purposes of the "Limitation on Asset
Sales" covenant, Asset Sales shall not include (a) a transaction or series of
related transactions for which the Company or its Subsidiaries receive aggregate
consideration of less than $500,000, (b) transactions permitted under the
"Limitation on Asset Swaps" covenant, (c) transactions permitted under the
"Merger, Consolidation and Sale of Assets" covenant or (d) any Contract Buy Out.
"Asset Swap" means the execution of a definitive agreement, subject only to FCC
approval and other customary closing conditions, that the Company in good faith
believes will be satisfied, for a substantially concurrent purchase and sale, or
exchange, of Productive Assets between the Company or any of its Subsidiaries
and another Person or group of affiliated Persons; provided that any amendment
to or waiver of any closing condition which individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
"Attributable Value" in respect of a sale and leaseback arrangement of any
property means, as at the time of determination, the greater of (i) the fair
market value of the property subject to such arrangement (as determined in good
faith by the Board of Directors of the Company) or (ii) the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such arrangement.
"Capitalized Lease Obligation" means, as to any Person, the obligation of such
Person to pay rent or other amounts under a lease to which such Person is a
party that is required to be classified and accounted for as a capital lease
obligation under GAAP and, for purposes of this definition, the amount of such
obligation at any date shall be the capitalized amount of such obligation at
such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated) of capital stock, including each class of common stock and Preferred
Stock of such Person and (ii) with respect to any Person that is not a
corporation, any and all partnership or other equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least
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P-1 from Moody's Investors Service, Inc.; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $200,000,000; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Chancellor Broadcasting" means Chancellor Broadcasting Company, a Delaware
corporation that was merged with and into Evergreen Mezzanine Holdings
Corporation, a Delaware corporation, on the Merger Date.
"Chancellor Media" means Chancellor Media Corporation, a Delaware corporation
formerly known as Evergreen Media Corporation, and its successors.
"Change of Control" means the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the assets of the
Company to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group") (whether or not otherwise in compliance with the
provisions of the Indenture), other than to Hicks Muse or any of its Affiliates,
officers and directors (the "Permitted Holders"); or (ii) a majority of the
Board of Directors of Chancellor Media, CMHC or the Company shall consist of
Persons who are not Continuing Directors; or (iii) the acquisition by any Person
or Group (other than the Permitted Holders) of the power, directly or
indirectly, to vote or direct the voting of securities having more than 50% of
the ordinary voting power for the election of directors of Chancellor Media,
CMHC or the Company.
"CMHC" means Chancellor Mezzanine Holdings Corporation, a Delaware corporation
formerly known as Evergreen Mezzanine Holdings Corporation, and its successors.
"Commodity Agreement" means any commodity futures contract, commodity option or
other similar agreement or arrangement entered into by the Company or any of its
Subsidiaries designed to protect the Company or any of its Subsidiaries against
fluctuations in the price of commodities actually used in the ordinary course of
business of the Company and its Subsidiaries.
"Consolidated EBITDA" means, with respect to any Person, for any period, the sum
(without duplication) of (i) Consolidated Net Income and (ii) to the extent
Consolidated Net Income has been reduced thereby, (A) all income taxes of such
Person and its Subsidiaries paid or accrued in accordance with GAAP for such
period (other than income taxes attributable to extraordinary or nonrecurring
gains or losses), (B) Consolidated Interest Expense and (C) Consolidated
Non-Cash Charges, all as determined on a consolidated basis for such Person and
its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for any
period, without duplication, the sum of (i) the interest expense of such Person
and its Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (a) any amortization of
debt discount, (b) the net cost under Interest Swap Obligations (including any
amortization of discounts), (c) the interest portion of any
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deferred payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing or
similar facilities, and (e) all accrued interest and (ii) the interest component
of Capitalized Lease Obligations paid or accrued by such person and its
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the aggregate net
income (or loss) of such Person and its Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP; provided that there
shall be excluded therefrom, without duplication, (a) gains and losses from
Asset Sales (without regard to the $500,000 limitation set forth in the
definition thereof) or abandonments or reserves relating thereto and the related
tax effects, (b) items classified as extraordinary or nonrecurring gains and
losses, and the related tax effects according to GAAP, (c) the net income (or
loss) of any Person acquired in a pooling of interests transaction accrued prior
to the date it becomes a Subsidiary of such first referred to Person or is
merged or consolidated with it or any of its Subsidiaries, (d) the net income of
any Subsidiary to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is restricted by contract,
operation of law or otherwise and (e) the net income of any Person, other than a
Subsidiary, except to the extent of the lesser of (x) dividends or distributions
paid to such first referred to Person or its Subsidiary by such Person and (y)
the net income of such Person (but in no event less than zero), and the net loss
of such Person shall be included only to the extent of the aggregate Investment
of the first referred to Person or a consolidated Subsidiary of such Person.
"Consolidated Non-Cash Charges" means, with respect to any Person for any
period, the aggregate depreciation, amortization and other non-cash expenses of
such Person and its Subsidiaries reducing Consolidated Net Income of such Person
and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charges constituting an extraordinary
or nonrecurring item).
"Continuing Director" means, as of the date of determination, any Person who (i)
was a member of the Board of Directors of Chancellor Media, CMHC or the Company
on the date of the Indenture, (ii) was nominated for election or elected to the
Board of Directors of Chancellor Media, CMHC or the Company with the affirmative
vote of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election, or (iii) is a
representative of a Permitted Holder.
"Contract Buy Out" means the involuntary disposition or termination (including,
without limitation, pursuant to a buy out) of a contract between a media
representation company and a client station.
"CRBC" means Chancellor Radio Broadcasting Company, a Delaware corporation that
was merged with and into CMCLA on the Merger Date.
"Credit Agreement" means the Credit Agreement, dated on or about February 14,
1996, among Chancellor Broadcasting, CRBC, the lenders thereto and Bankers Trust
Company as managing agent, as such agreement may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including by way of adding Subsidiaries of
CRBC as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor
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or replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values.
"Default" means an event or condition the occurrence of which is, or with the
lapse of time or the giving of notice or both would be, an Event of Default.
"Designated Guarantor Senior Debt" means (i) Indebtedness guaranteed by a
Guarantor under or in respect of the Senior Credit Facility and (ii) any other
Indebtedness constituting Guarantor Senior Debt which, at the time of
determination, has an aggregate principal amount of at least $25,000,000 and is
specifically designated in the instrument evidencing such Guarantor Senior Debt
as "Designated Guarantor Senior Debt" by the Guarantor.
"Designated Senior Debt" means (i) Indebtedness under or in respect of the
Senior Credit Facility and (ii) any other Indebtedness constituting Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $25,000,000 and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"Disqualified Capital Stock" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the final maturity date of the Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Financial Monitoring and Oversight Agreements" means the Financial Monitoring
and Oversight Agreement among Hicks, Muse & Co. Partners, L.P., CRBC and
Chancellor Broadcasting, as in effect on the 9 3/8% Notes Issue Date, and the
Financial Advisory Agreement among HM2/Management Partners, L.P., CRBC and
Chancellor Broadcasting, as in effect on the 9 3/8% Notes Issue Date, or as each
is amended in connection with the merger of Chancellor Broadcasting, CRBC,
Chancellor Media, CMHC and the Company on the Merger Date.
"GAAP" means generally accepted accounting principles as in effect in the United
States of America as of the Issue Date.
"Guarantors" mean (i) initially, all of the Company's subsidiaries on the Issue
Date except Katz International Limited, Katz Television Sales Limited, Katz
Radio Sales Limited and National Cable Communications, L.P. and (ii) each of the
Company's Subsidiaries that, subsequent to the Issue Date, executes a
supplemental indenture in which such Subsidiary agrees to be bound by the terms
of the Indenture as a Guarantor; provided that any Person constituting a
Guarantor as described above shall cease to constitute a Guarantor when its
respective Guarantee is released in accordance with the terms thereof.
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"Guarantor Senior Debt" means any Indebtedness of a Guarantor (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Guarantees. Without
limiting the generality of the foregoing, "Guarantor Senior Debt" shall also
include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of, and all monetary obligations of every nature under, (x) the
Senior Credit Facility, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, and (y) all Interest Swap Obligations. Notwithstanding
the foregoing, "Guarantor Senior Debt" shall not include any of the following
amounts (whether or not constituting Indebtedness as defined in this Indenture):
(i) any Indebtedness of a Guarantor to a Subsidiary of such Guarantor; (ii)
Indebtedness and other amounts owing to trade creditors incurred in connection
with obtaining goods, materials or services; (iii) Indebtedness represented by
Disqualified Capital Stock; (iv) any liability for federal, state, local or
other taxes owed or owing by a Guarantor; (v) any Indebtedness which is, by its
express terms, subordinated in right of payment to any other Indebtedness of
such Guarantor; and (vi) guarantees of each of the 9 3/8% Notes, the 8 3/4%
Notes, the 10 1/2% Notes and the 8 1/8% Notes.
"Hicks Muse" means Hicks, Muse, Tate & Furst Incorporated.
"Indebtedness" means with respect to any Person, without duplication, any
liability of such Person (i) for borrowed money, (ii) evidenced by bonds,
debentures, notes or other similar instruments, (iii) constituting Capitalized
Lease Obligations, (iv) incurred or assumed as the deferred purchase price of
property, or pursuant to conditional sale obligations and title retention
agreements (but excluding trade accounts payable arising in the ordinary course
of business), (v) for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) for Indebtedness of
others guaranteed by such Person, (vii) for Interest Swap Obligations, Commodity
Agreements and Currency Agreements and (viii) for Indebtedness of any other
Person of the type referred to in clauses (i) through (vii) which are secured by
any Lien on any property or asset of such first referred to Person, the amount
of such Indebtedness being deemed to be the lesser of the value of such property
or asset or the amount of the Indebtedness so secured. The amount of
Indebtedness of any Person at any date shall be the outstanding principal amount
of all unconditional obligations described above, as such amount would be
reflected on a balance sheet prepared in accordance with GAAP, and the maximum
liability at such date of such Person for any contingent obligations described
above.
"Interest Swap Obligations" means the obligations of any Person under any
interest rate protection agreement, interest rate future, interest rate option,
interest rate swap, interest rate cap or other interest rate hedge or
arrangement.
"Investment" means (i) any transfer or delivery of cash, stock or other property
of value in exchange for Indebtedness, stock or other security or ownership
interest in any Person by
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way of loan, advance, capital contribution, guarantee or otherwise and (ii) an
investment deemed to have been made by the Company at the time any entity which
was a Subsidiary of the Company ceases to be such a Subsidiary in an amount
equal to the value of the loans and advances made, and any remaining ownership
interest in, such entity immediately following such entity ceasing to be a
Subsidiary of the Company. The amount of any non-cash Investment shall be the
fair market value of such Investment, as determined conclusively in good faith
by management of the Company unless the fair market value of such Investment
exceeds $1.0 million, in which case the fair market value shall be determined
conclusively in good faith by the Board of Directors of the Company at the time
such Investment is made.
"Issue Date" means the date of original issuance of the Original Notes.
"Leverage Ratio" shall mean, as to any Person, the ratio of (i) the sum of the
aggregate outstanding amount of Indebtedness of such Person and its Subsidiaries
as of the date of calculation on a consolidated basis in accordance with GAAP to
(ii) the Consolidated EBITDA of such Person for the four full fiscal quarters
(the "Four Quarter Period") ending on or prior to the date of determination.
For purposes of this definition, the aggregate outstanding principal amount of
Indebtedness of the Person and its Subsidiaries for which such calculation is
made shall be determined on a pro forma basis as if the Indebtedness giving rise
to the need to perform such calculation had been incurred and the proceeds
therefrom had been applied, and all other transactions in respect of which such
Indebtedness is being incurred had occurred, on the last day of the Four Quarter
Period. In addition to the foregoing, for purposes of this definition,
"Consolidated EBITDA" shall be calculated on a pro forma basis after giving
effect to (i) the incurrence of the Indebtedness of such Person and its
Subsidiaries (and the application of the proceeds therefrom) giving rise to the
need to make such calculation and any incurrence (and the application of the
proceeds therefrom) or repayment of other Indebtedness, other than the
incurrence or repayment of Indebtedness pursuant to working capital facilities,
at any time subsequent to the beginning of the Four Quarter Period and on or
prior to the date of determination, as if such incurrence (and the application
of the proceeds thereof), or the repayment, as the case may be, occurred on the
first day of the Four Quarter Period and (ii) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person who becomes a Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) at any time on or subsequent to the first day of the Four Quarter
Period and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness and also including any Consolidated EBITDA associated with
such Asset Acquisition) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Interest Expense" for purposes of the
calculation of "Consolidated EBITDA," (i) interest on Indebtedness determined on
a fluctuating basis as of the date of determination (including Indebtedness
actually incurred on the date of the transaction giving rise to the need to
calculate the Leverage Ratio) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness as in effect on the date of
determination and (ii) notwithstanding (i) above, interest determined on a
fluctuating basis, to the extent such interest is covered by Interest Swap
Obligations, shall be deemed
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to accrue at the rate per annum resulting after giving effect to the operation
of such agreements.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Merger Date" means September 5, 1997.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in the
form of cash or Cash Equivalents (including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents)
received by the Company or any of its Subsidiaries from such Asset Sale net of
(i) reasonable out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees
and sales commissions, recording fees, title insurance premiums, appraisers fees
and costs reasonably incurred in preparation of any asset or property for sale),
(ii) taxes paid or reasonably estimated to be payable (calculated based on the
combined state, federal and foreign statutory tax rates applicable to the
Company or the Subsidiary engaged in such Asset Sale) and (iii) repayment of
Indebtedness secured by assets subject to such Asset Sale; provided that if the
instrument or agreement governing such Asset Sale requires the transferor to
maintain a portion of the purchase price in escrow (whether as a reserve for
adjustment of the purchase price or otherwise) or to indemnify the transferee
for specified liabilities in a maximum specified amount, the portion of the cash
or Cash Equivalents that is actually placed in escrow or segregated and set
aside by the transferor for such indemnification obligation shall not be deemed
to be Net Cash Proceeds until the escrow terminates or the transferor ceases to
segregate and set aside such funds, in whole or in part, and then only to the
extent of the proceeds released from escrow to the transferor or that are no
longer segregated and set aside by the transferor.
"Obligations" means all obligations for principal, premium, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing, or otherwise relating to, any Indebtedness.
"Permitted Indebtedness" means, without duplication, (i) the Notes; (ii) the
Guarantees; (iii) Indebtedness of the Company incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not to exceed
the sum of the aggregate commitments pursuant to the Credit Agreement as
initially in effect on the 9 3/8% Notes Issue Date; (iv) the 9 3/8% Notes, the
8 3/4% Notes, the 10 1/2% Notes and the 8 1/8% Notes and Guarantees thereof; (v)
Interest Swap Obligations; provided that such Interest Swap Obligations are
entered into to protect the Company from fluctuations in interest rates of its
Indebtedness; (vi) additional Indebtedness of the Company or any of its
Subsidiaries not to exceed $10,000,000 in principal amount outstanding at any
time (which amount may, but need not, be incurred under the Senior Credit
Facility); (vii) Refinancing Indebtedness; (viii) Indebtedness owed by the
Company to any Wholly-Owned Subsidiary or by any Subsidiary to the Company or
any Wholly-Owned Subsidiary of the Company; and (ix) guarantees by Subsidiaries
of any Indebtedness permitted to be incurred pursuant to the Indenture.
"Permitted Investments" means (i) Investments by the Company or any Subsidiary
to acquire the stock or assets of any Person (or Indebtedness of such Person
acquired in connection with a transaction in which such Person becomes a
Subsidiary of the
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Company) engaged in the broadcast business or businesses reasonably related
thereto, including, without limitation, media representation, sale of
advertising and such other activities as are incidental or similar or related
thereto; provided that if any such Investment or series of related Investments
involves an Investment by the Company in excess of $5,000,000, the Company is
able, at the time of such Investment and immediately after giving effect
thereto, to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with the "Limitation on Incurrence of
Additional Indebtedness" covenant, (ii) Investments received by the Company or
its Subsidiaries as consideration for a sale of assets, including an Asset Sale
effected in compliance with the "Limitation on Asset Sales" covenant, (iii)
Investments by the Company or any Wholly-Owned Subsidiary of the Company in any
Wholly-Owned Subsidiary of the Company (whether existing on the Issue Date or
created thereafter) or any Person that after such Investments, and as a result
thereof, becomes a Wholly-Owned Subsidiary of the Company and Investments in the
Company by any Wholly-Owned Subsidiary of the Company, (iv) cash and Cash
Equivalents, (v) Investments in securities of trade creditors, wholesalers or
customers received pursuant to any plan of reorganization or similar arrangement
and (vi) additional Investments in an aggregate amount not to exceed $2,500,000
at any time outstanding.
"Permitted Liens" means (i) Liens for taxes, assessments and governmental
charges to the extent not required to be paid under the Indenture, (ii)
statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen or other like Liens to the extent not required to be paid
under the Indenture, (iii) pledges or deposits to secure lease obligations or
nondelinquent obligations under workers' compensation, unemployment insurance or
similar legislation, (iv) Liens to secure the performance of public statutory
obligations that are not delinquent, performance bonds or other obligations of a
like nature (other than for borrowed money), in each case incurred in the
ordinary course of business, (v) easements, rights-of-way, restrictions, minor
defects or irregularities in title and other similar charges or encumbrances
incurred in the ordinary course of business not interfering in any material
respect with the business of the Company or its Subsidiaries, (vi) Liens upon
specific items of inventory or other goods and proceeds of any Person securing
such Person's obligations in respect of letters of credit or bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods in the ordinary
course of business, (vii) judgment and attachment Liens not giving rise to an
Event of Default, (viii) leases or subleases granted to others in the ordinary
course of business consistent with past practice not interfering in any material
respect with the business of the Company or its Subsidiaries, (ix) any interest
or title of a lessor in the property subject to any lease, whether characterized
as capitalized or operating other than any such interest or title resulting from
or arising out of a default by the Company or its Subsidiaries of its
obligations under such lease and (x) Liens arising from filing UCC financing
statements for precautionary purposes in connection with true leases of personal
property that are otherwise permitted under the Indenture and under which the
Company or any of its Subsidiaries is a lessee.
"Person" means an individual, partnership, corporation, limited liability
company, unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof.
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"Preferred Stock" of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.
"Productive Assets" means assets of a kind used or usable by the Company and its
Subsidiaries in broadcast businesses or businesses reasonably related thereto,
including, without limitation, media representation, sale of advertising and
such other activities as are incidental or similar or related thereto, and
specifically includes assets acquired through Asset Acquisitions.
"Public Equity Offering" means an underwritten, fully registered public offering
of Capital Stock (other than Disqualified Capital Stock) of the Company,
Chancellor Media, CMHC or upon the consummation of the Capstar Merger, Capstar
Broadcasting Corporation, or any of their respective successors, pursuant to an
effective registration statement filed with the Commission in accordance with
the Securities Act, the gross proceeds of which are at least $150 million;
provided, however, that in the case of a Public Equity Offering by Chancellor
Media, CMHC or upon the consummation of the Capstar Merger, Capstar Broadcasting
Corporation, or any of their respective successors, the issuer of the public
equity must contribute to the capital of the Company an amount sufficient to
redeem the 9 3/8% Notes, 8 3/4% Notes, 10 1/2% Notes, 8 1/8% Notes and Notes, if
any, called for redemption in accordance with the terms thereof.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Refinancing Indebtedness" means any refinancing by the Company of Indebtedness
of the Company or any of its Subsidiaries incurred in accordance with the
"Limitation on Incurrence of Additional Indebtedness" covenant (other than
pursuant to clause (iii) or (iv) of the definition of Permitted Indebtedness)
that does not (i) result in an increase in the aggregate principal amount of
Indebtedness (such principal amount to include, for purposes of this definition,
any premiums, penalties or accrued interest paid with the proceeds of the
Refinancing Indebtedness) of such Person or (ii) create Indebtedness with (A) a
Weighted Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being refinanced or (B) a final maturity earlier
than the final maturity of the Indebtedness being refinanced.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Debt; provided that if, and
for so long as, any Designated Senior Debt lacks such a representative, then the
Representative for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such Designated Senior
Debt.
"Sale and Leaseback Transaction" means any direct or indirect arrangement with
any Person or to which any such Person is a party, providing for the leasing to
the Company or a Subsidiary of any property, whether owned by the Company or any
Subsidiary at the Issue Date or later acquired, which has been or is to be sold
or transferred by the Company or such Subsidiary to such Person or to any other
Person from whom funds have been or are to be advanced by such Person on the
security of such property.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Senior Credit Facility" means the Second Amended and Restated Loan Agreement,
dated April 25, 1997, as amended from time to time, among the Company, the
lenders
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from time to time named party thereto, Toronto Dominion (Texas), Inc., Bankers
Trust Company, The Bank of New York, NationsBank of Texas, N.A. and Union Bank
of California, as managing agents, Toronto Dominion Securities (USA), Inc., as
arranging agent, and Toronto Dominion (Texas), Inc., as administrative agent for
the lenders, together with the related documents thereto (including, without
limitation, any guarantee agreements, stock pledge agreements and other security
documents), in each case, as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including by way of adding Subsidiaries of
the Company as additional borrowers or guarantors thereunder) all or any portion
of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
"Senior Debt" means any Indebtedness of the Company (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes. Without
limiting the generality of the foregoing, "Senior Debt" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, and all monetary obligations of every nature under, (x) the Senior Credit
Facility, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities, and (y) all Interest Swap Obligations. Notwithstanding the
foregoing, Senior Debt shall not include any of the following amounts (whether
or not constituting Indebtedness as defined in the Indenture): (i) any
Indebtedness of the Company to a Subsidiary of the Company, (ii) Indebtedness
and other amounts owing to trade creditors incurred in connection with obtaining
goods, materials or services, (iii) Indebtedness represented by Disqualified
Capital Stock, (iv) any liability for federal, state, local or other taxes owed
or owing by the Company, (v) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the Company,
including the 9 3/8% Notes, the 8 3/8% Notes, the 10 1/2% Notes and the 8 1/8%
Notes.
"Significant Subsidiary" means for any Person each Subsidiary of such Person
which (i) for the most recent fiscal year of such Person accounted for more than
5% of the consolidated net income of such Person or (ii) as at the end of such
fiscal year, was the owner of more than 5% of the consolidated assets of such
Person.
"Subsidiary," with respect to any Person, means (i) any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to be
cast in the election of directors under ordinary circumstances shall at the time
be owned, directly or indirectly, by such Person or (ii) any other Person of
which at least a majority of the voting interest under ordinary circumstances is
at the time, directly or indirectly, owned by such Person. Notwithstanding
anything in the Indenture to the contrary, all references to the Company and its
consolidated Subsidiaries or to financial information prepared on a consolidated
basis in accordance with GAAP shall be deemed to include the Company and
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its Subsidiaries as to which financial statements are prepared on a combined
basis in accordance with GAAP and to financial information prepared on such a
combined basis. Notwithstanding anything in the Indenture to the contrary, an
Unrestricted Subsidiary shall not be deemed to be a Subsidiary for purposes of
the Indenture.
"Tax Sharing Agreement" means the Tax Sharing Agreement between CRBC and
Chancellor Broadcasting, as in effect on the 9 3/8% Notes Issue Date.
"Unrestricted Subsidiary" means a Subsidiary of the Company created after the
9 3/8% Notes Issue Date and so designated by a resolution adopted by the Board
of Directors of the Company, provided that (a) neither the Company nor any of
its other Subsidiaries (other than Unrestricted Subsidiaries) (1) provides any
credit support for any Indebtedness of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness) or (2) is
directly or indirectly liable for any Indebtedness of such Subsidiary, (b) the
creditors with respect to Indebtedness for borrowed money of such Subsidiary,
having a principal amount in excess of $5,000,000, have agreed in writing that
they have no recourse, direct or indirect, to the Company or any other
Subsidiary of the Company (other than Unrestricted Subsidiaries), including,
without limitation, recourse with respect to the payment of principal of or
interest on any Indebtedness of such Subsidiary and (c) at the time of
designation of such Subsidiary such Subsidiary has no property or assets (other
than de minimis assets resulting from the initial capitalization of such
Subsidiary). Any such designation by the Board of Directors of the Company shall
be evidenced to the Trustee by the filing with the Trustee of a certified copy
of the resolution of the Company's Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions. Until otherwise designated by the Board
of Directors of the Company, National Cable Communications, L.P., a Delaware
limited partnership, shall be an Unrestricted Subsidiary.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at
any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
BOOK-ENTRY; DELIVERY AND FORM
Except as set forth below, the New Notes initially will be represented by one or
more permanent global certificates in definitive, fully registered form (the
"Global Certificate"). The Global Certificate will be deposited with, or on
behalf of, DTC and registered in the name of a nominee of DTC.
The Global Certificate. The Company expects that pursuant to procedures
established by DTC (i) upon the issuance of the Global Certificate, DTC or its
custodian will credit, on its internal system, the aggregate principal amount of
New Notes of the individual beneficial interests represented by such global
securities to the respective accounts of persons who have accounts with such
depositary and (ii) ownership of beneficial interests in the Global Certificate
will be shown on, and the transfer of such ownership will be
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effected only through, records maintained by DTC or its nominee (with respect to
interests of participants) and the records of participants (with respect to
interests of persons other than participants). Ownership of beneficial interests
in the Global Certificate will be limited to persons who have accounts with DTC
("participants") or persons who hold interests through participants.
So long as DTC, or its nominee, is the registered owner or holder of the New
Notes, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the New Notes represented by such Global Certificate for all
purposes. No beneficial owner of an interest in the Global Certificate will be
able to transfer that interest except in accordance with DTC's procedures, in
addition to those procedures provided for in the Indenture.
Payments of the principal of, premium, if any, and interest on the Global
Certificate will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of the Company, the Trustee nor the Paying Agent
and Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Certificate or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interest.
The Company expects that DTC, or its nominee, upon receipt of any payment of
principal, premium, if any, and interest in respect of the Global Certificate,
will credit participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of the Global
Certificate as shown on the records of DTC or its nominee. The Company also
expects that payments by participants to owners of beneficial interests in the
Global Certificate held through such participants will be governed by standing
instructions and customary practice, as is now the case with securities held for
the accounts of customers registered in the names of nominees for such
customers. Such payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way in
accordance with DTC rules and will be settled in clearinghouse funds. If a
holder requires physical delivery of a Certificated Security for any reason,
including to sell New Notes to persons in states that require physical delivery
of the Certificate, or to pledge such securities, such holder must transfer its
interest in the Global Certificate, in accordance with the normal procedures of
DTC and with the procedures set forth in the Indenture.
DTC has advised the Company that it will take any action permitted to be taken
by a holder of New Notes (including the presentation of New Notes for exchange
as described below) only at the direction of one or more participants to whose
account the DTC interests in the Global Certificate are credited and only in
respect of such New Notes as to which such participant or participants has or
have given such direction.
DTC has advised the Company as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "Clearing Agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for its
participants and facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry changes in
accounts of its participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations and certain other organizations.
Indirect
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access to the DTC system is available to others such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a participant, either directly or indirectly ("indirect participants").
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificate among participants of DTC, it
is under no obligation to perform such procedures, and such procedures may be
discontinued at any time. Neither the Company nor the Trustee will have any
obligations under the rules and procedures governing their operations.
Certificated Securities. If DTC is at any time unwilling or unable to continue
as a depositary for the Global Certificate and a successor depositary is not
appointed by the Company within 90 days, Certificated Securities will be issued
in exchange for the Global Certificate.
DESCRIPTION OF CERTAIN INDEBTEDNESS
SENIOR CREDIT FACILITY
On April 25, 1997, the Company closed its Second Amended and Restated Loan
Agreement (as amended from time to time, the "Senior Credit Facility") with TD
Securities (USA) Inc. as arranging agent, The Bank of New York and Bankers Trust
Company, as co-syndication agents, NationsBank of Texas, N.A. and Union Bank of
California, as co-documentation agents, Toronto Dominion (Texas), Inc., as
administrative agent (the "Administrative Agent"), and the financial
institutions party thereto (the "Lenders"). The Senior Credit Facility initially
provided for a maximum commitment of $1.75 billion, and upon consummation of the
Chancellor Merger, the aggregate commitment under the Senior Credit Facility was
increased to $2.50 billion. Loans under the Senior Credit Facility consist of
(i) a $900.0 million term loan facility (the "Term Loan Facility") and (ii) a
$1.60 billion revolving loan facility (the "Revolving Loan Facility" and,
collectively with the Term Loan Facility, the "Loans").
The following description of certain provisions of the Senior Credit Facility
does not purport to be complete and is qualified in its entirety by reference to
the full text of the Senior Credit Facility, a copy of which is available from
the Company on request.
TERM LOAN FACILITY
The Term Loan Facility matures on June 30, 2005. The Term Loan Facility requires
scheduled annual reductions of the principal balance of the Term Loan Facility
outstanding on June 30, 2000, payable quarterly in equal quarterly amounts,
commencing on September 30, 2000 in the following percentages: (i) from 9/30/00
through and including 6/30/01, 15.00%; (ii) from 9/30/01 through and including
6/30/02, 20.00%; (iii) from 9/30/02 through and including 6/30/03, 20.00%; (iv)
from 9/30/03 through and including 6/30/04, 20.00%; and (v) from 9/30/04 through
and including 6/30/05, 25.00%. Mandatory or optional prepayments made by the
Company against the Term Loan Facility will not affect the reduction percentages
set forth above.
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REVOLVING LOAN FACILITY
The Revolving Loan Facility matures on June 30, 2005. The Revolving Loan
Facility requires scheduled annual reductions of the Revolving Loan Commitment
(as defined in the Senior Credit Facility) as of June 30, 2000, payable
quarterly in equal quarterly amounts, commencing on September 30, 2000 in the
following percentages: (i) from 9/30/00 through and including 6/30/01, 15.00%;
(ii) from 9/30/01 through and including 6/30/02, 20.00%; (iii) from 9/30/02
through and including 6/30/03, 20.00%; (iv) from 9/30/03 through and including
6/30/04, 20.00%; and (v) from 9/30/04 through and including 6/30/05, 25.00%.
Voluntary reductions of the Revolving Loan Commitment made by the Company shall
not affect the reduction percentages set forth above.
ADDITIONAL FACILITY INDEBTEDNESS
The Company has the ability to incur additional indebtedness ("Additional
Facility Indebtedness") in a principal amount not to exceed $250.0 million from
one or more of the Lenders or any other institution acceptable to the
Administrative Agent that agrees to extend such credit, provided that certain
conditions under the Senior Credit Facility are complied with. As of the date
hereof, the Company has not requested, and no Lender has issued, any commitment
to extend such Additional Facility Indebtedness to the Company.
INTEREST RATE
The Loans bear interest at a rate equal to, at the Company's option, (i) the
Prime Rate (as defined in the Senior Credit Facility) in effect from time to
time plus the Applicable Margin (as defined) (a "Prime Rate Loan") or (ii) the
Eurodollar Rate (as defined in the Senior Credit Facility) as determined by the
Administrative Agent for the respective interest period plus the Applicable
Margin (a "Eurodollar Loan"). The Applicable Margin is calculated based on the
Company's Total Leverage Ratio (as defined in the Senior Credit Facility)
according to the table set forth below:
<TABLE>
<CAPTION>
PRIME RATE EURODOLLAR RATE
APPLICABLE APPLICABLE
TOTAL LEVERAGE RATIO MARGIN MARGIN
-------------------- ----------------- -----------------
<S> <C> <C>
Greater than 6.75................................. 1.000% 2.000%
Greater than 6.50 but less than or equal to
6.75............................................ 0.750% 1.750%
Greater than 6.00 but less than or equal to
6.50............................................ 0.375% 1.375%
Greater than 5.50 but less than or equal to
6.00............................................ 0.125% 1.125%
Greater than 5.00 but less than or equal to
5.50............................................ 0.000% 0.875%
Greater than 4.50 but less than or equal to
5.00............................................ 0.000% 0.625%
Greater than 4.00 but less than or equal to
4.50............................................ 0.000% 0.500%
Less than or equal to 4.00........................ 0.000% 0.400%
</TABLE>
FEES
The Company is required to pay commitment fees on the aggregate unused amount of
the Available Revolving Loan Commitment (as defined in the Senior Credit
Facility) based on the Total Leverage Ratio for the most recent fiscal quarter
end. If the Total Leverage Ratio is greater than or equal to 5.50, the
corresponding commitment fee is 0.375%; if the Total Leverage Ratio is less than
5.50, the corresponding commitment fee is 0.250%. The
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Administrative Agent will also receive such other customary fees as have been
separately agreed upon with the Company. The Company also is required to pay
fees for outstanding letters of credit drawn under the Senior Credit Facility at
a rate per annum on the amount of the Letter of Credit Obligations (as defined
in the Senior Credit Facility) equal to the Applicable Margin for Eurodollar
Loans plus an issuing bank fee of $2,000 for issuing, amending or renewing any
letter of credit.
SECURITY AND GUARANTEES
The Senior Credit Facility is secured by (i) a pledge of all capital stock owned
by CMCLA and its subsidiaries, (ii) a pledge of all capital stock of CMCLA,
(iii) a non-recourse pledge of all capital stock of CMHC owned by Chancellor
Media, (iv) a pledge of all debt and equity securities of persons engaged in any
Non-Core Business (as defined in the Senior Credit Facility) purchased by the
Company, (v) a collateral assignment of all partnership interests held by the
subsidiaries of CMCLA, (vi) a collateral assignment of all trust interests held
by the subsidiaries of CMCLA, (vii) a collateral assignment of all limited
liability company interests held by CMCLA, (viii) a downstream guarantee
provided by CMHC and its wholly owned subsidiary and (ix) upstream guarantees
provided by the subsidiaries of CMCLA.
COVENANTS
The Senior Credit Facility contains customary restrictive covenants, which,
among other things and with certain exceptions, limit the ability of the Company
to incur additional indebtedness and liens in connection therewith, enter into
certain transactions with affiliates, pay dividends, consolidate, merge or
effect certain asset sales, issue additional stock, effect an asset swap, make
acquisitions and make capital expenditures and enter new lines of business.
Under the Senior Credit Facility, the Company is required to maintain specified
financial ratios, based on its Senior Leverage Ratio and Total Leverage Ratio
(in each case, as defined in the Senior Credit Facility), for specified periods
of time. Under the Senior Credit Facility, the Company must not exceed the
following ratios during the following periods of time:
<TABLE>
<CAPTION>
PERIOD ENDING SENIOR LEVERAGE RATIO TOTAL LEVERAGE RATIO
------------- --------------------- --------------------
<S> <C> <C>
1/1/98 through 12/31/98................... 6.00 to 1.00 7.00 to 1.00
1/1/99 through 12/31/99................... 5.50 to 1.00 6.00 to 1.00
1/1/00 through 12/31/00................... 3.75 to 1.00 5.25 to 1.00
1/1/01 and thereafter..................... 3.50 to 1.00 5.25 to 1.00
</TABLE>
Under the Senior Credit Facility, the Company may not, as of the end of any
fiscal quarter, allow its ratio of the sum of Operating Cash Flow plus the
Available Revolving Commitment (in each case, as defined in the Senior Credit
Facility) during the last fiscal four-quarter period to Pro Forma Fixed Changes
(as defined in the Senior Credit Facility) for the four-quarter period beginning
on the day following that fiscal quarter end, to be less than 1.05 to 1.00.
Under the Senior Credit Facility, the Company also is required to comply with
certain other financial tests, such as a specified ratio of Operating Cash Flow
to Cash Interest Expense (as each such term is defined in the Senior Credit
Facility).
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USE OF PROCEEDS
The Senior Credit Facility requires that the Net Proceeds from any Permitted
Asset Sale (in each case, as defined in the Senior Credit Facility) be applied,
at the Company's election, to the Term Loan Facility or the Revolving Loan
Facility or any combination thereof. In the alternative, the Company may elect
to make an acquisition with the Net Proceeds, so long as the Company has entered
into a contract for such acquisition within 12 months from the date of such
Permitted Asset Sale and has concluded the purchase with 18 months from the date
of such Permitted Asset Sale. In addition, 50% of Net Proceeds from any
Subordinated Indebtedness issued by the Company, other than the assumption or
refinancing of the 9 3/8% Notes and the 8 3/4% Notes, may be applied, at the
Company's election, to the Term Loan Facility or the Revolving Loan Facility or
any combination thereof. To the extent that the Company elects to apply any
amounts described in this paragraph to the Revolving Loan Facility, the
commitments under such facility will not be permanently reduced and will be
available for subsequent borrowing by the Company.
EVENTS OF DEFAULT
The Senior Credit Facility contains customary events of default, including (i)
the default in the payment of any interest, reimbursement amounts with respect
to letters of credit, or fees or other amounts payable to the Lenders (other
than principal) when due which is not cured within five days from the date that
such payment was due, (ii) the default in the payment of any principal amount
when due, (iii) the default in the performance or observance of certain
representations, warranties, covenants and agreements contained in the Senior
Credit Facility, (iv) a Senior Credit Facility Change of Control (as defined
below), (v) the entry of an order for relief, winding-up or liquidation under
Title 11 of the United States Code or similar federal or state laws against
Chancellor Media, CMHC or the Company, (vi) the voluntary commencement by the
Company of bankruptcy proceedings under Title 11 of the United States Code or
similar federal or state laws, or the commencement of involuntary bankruptcy
proceedings against the Company, which are not diligently contested or which
continue undismissed for a period of 45 consecutive days, (vii) the entry of a
judgment against the Company which, individually or when aggregated with other
such judgments, exceeds $10 million, (viii) the failure to satisfy certain
minimum employee benefit funding standards, (ix) the acceleration of the
maturity of (a) Subordinated Indebtedness of the Company or (b) any other
indebtedness of the Company in an aggregate principal amount exceeding $3
million, (x) any event which would permit the acceleration of such subordinated
indebtedness or such other indebtedness which has not been cured or waived in
writing within any applicable cure period, (xi) any event which does not permit
acceleration of such Subordinated Indebtedness or such other indebtedness but
requires the Company to purchase or acquire such Subordinated Indebtedness or
such other indebtedness, (xii) any material default under any Interest Hedge
Agreement (as defined in the Senior Credit Facility) with a notional principal
amount of $6 million or more, (xii) the issuance by the FCC of a revocation
order based on alleged alien ownership of the Company, (xiii) the final,
non-appealable termination or revocation of any material FCC license or failure
to renew any such license, (xiv) the failure of any security document or note
under the Senior Credit Facility to be in effect, or (xv) the breach by CMHC of
the guarantee or stock pledge made by it pursuant to the Senior Credit Facility.
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A "Senior Credit Facility Change of Control" will be deemed to have occurred
under the Senior Credit Facility if (i) any Person (as defined in the Senior
Credit Facility), other than Scott K. Ginsburg, Matthew Devine, Kenneth J.
O'Keefe, James de Castro and Hicks Muse and its affiliates, shall individually
or collectively control more than 51% on a fully diluted basis of the voting
power of Chancellor Media or (ii) CMHC shall, directly or indirectly, cease to
own all of the issued and outstanding common stock of CMCLA.
9 3/8% NOTES
The 9 3/8% Notes mature on October 1, 2004. Interest on the 9 3/8% Notes accrues
at the rate of 9 3/8% per annum and is payable semiannually. The 9 3/8% Notes
are unsecured obligations of the Company, ranking subordinate in right of
payment to all Senior Debt (as defined in the indenture governing the 9 3/8%
Notes (the "9 3/8% Indenture")) of the Company and pari passu with the 8 3/4%
Notes and the 10 1/2% Notes, and will rank pari passu with the New Notes.
Substantially all of the Company's subsidiaries fully and unconditionally
guarantee the full and prompt payment of principal of all interest on the 9 3/8%
Notes, and of all other obligations under the 9 3/8% Indenture. The indebtedness
evidenced by each such guarantee is subordinated to each Guarantor's Senior Debt
on the same terms as the 9 3/8% Notes are subordinated to the Company's Senior
Debt.
The 9 3/8% Notes are redeemable, at the Company's option, in whole at any time
or in part from time to time, on and after February 1, 2000, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period commencing on February 1 of the year set forth
below, plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2000........................................................ 104.688%
2001........................................................ 103.125
2002........................................................ 101.563
2003 and thereafter......................................... 100.000
</TABLE>
In addition, on or prior to January 31, 1999, the Company may redeem the 9 3/8%
Notes with the net cash proceeds of one or more Public Equity Offerings (as
defined in the 9 3/8% Indenture) at a redemption price of 108.203% or 107.031%
of the principal amount thereof, plus, in each case, accrued and unpaid interest
to the redemption date, during the respective 12-month periods commencing on
February 1, 1997 and 1998; provided, however, that after any such redemption at
least 75% of the aggregate principal amount of the 9 3/8% Notes originally
issued must be outstanding. The Company's ability to optionally redeem the
9 3/8% Notes are subject to restrictions contained in the Senior Credit
Facility, which limits the amount of debt subordinate to the indebtedness under
the Senior Credit Facility that may be redeemed by the Company.
Under the 9 3/8% Indenture, in the event of a change of control (as defined in
the 9 3/8% Indenture) of the Company, each holder of 9 3/8% Notes will have the
right to require the Company to repurchase, in whole or in part, such holder's
9 3/8% Notes at a purchase price equal to 101% of their principal amount, plus
accrued and unpaid interest, if any to the date of repurchase.
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The 9 3/8% Indenture contains certain restrictive covenants which, among other
things, impose limitations (subject to certain exceptions) on the Company with
respect to (i) the payment of dividends or other distributions on capital stock
and the purchase, redemption or retirement for value of shares of capital stock
as any warrants, options or other rights for shares of capital stock; (ii) the
incurrence of additional indebtedness; (iii) the incurrence of subsidiary
indebtedness; (iv) the repayment of redemption of subordinated indebtedness
other than in accordance with its scheduled repayment; (v) sales of assets by
the Company; (vi) asset swaps; (vii) transactions with stockholders and
affiliates; (viii) the restriction of certain payments by subsidiaries to their
respective parents; (ix) the creation of liens on the assets of the Company or
its subsidiaries; (x) the incurrence of indebtedness senior to the 9 3/8% Notes
and subordinate to other indebtedness of the Company; (xi) investments by the
Company or its subsidiaries; (xii) the issuance of preferred stock by any of the
Company's subsidiaries; (xiii) sales and leasebacks by the Company or its
subsidiaries; (xiv) the guarantee of indebtedness; (xv) the conduct of business
other than the ownership and operation of radio broadcast stations and
businesses reasonably related thereto; and (xvi) the merger or sale of all or
substantially all the assets of the Company. Upon the happening of certain
events of default specified in the 9 3/8% Indenture, the trustee for the 9 3/8%
Notes may, and the trustee upon the request of holders of 25% in principal
amount then outstanding of the 9 3/8% Notes shall, or the holders of at least
25% in principal amount of outstanding 9 3/8% Notes may, declare the principal
amount then outstanding of and accrued but unpaid interest, if any, on all of
such 9 3/8% Notes to be due and payable. Upon the happening of certain other
events of default specified in the 9 3/8% Notes Indenture, the unpaid principal
of and accrued but unpaid interest on all outstanding 9 3/8% Notes will
automatically become due and payable without any action by the trustee or the
holders of the 9 3/8% Notes.
The Company may terminate its obligations under the 9 3/8% Indenture at any
time, and the obligations of the Guarantors with respect thereto shall
terminate, by delivering all outstanding 9 3/8% Notes of the appropriate series
to the appropriate trustee for cancellation and paying all sums payable by it
thereunder. The Company, at its option, (i) will be discharged from any and all
obligations with respect to the 9 3/8% Notes delivered, and the guarantor will
be discharged from any and all obligations with respect to its guarantee of such
9 3/8% Notes, (except for certain obligations of the Company to register the
transfer or exchange of such 9 3/8% Notes, replace stolen, lost or mutilated
9 3/8% Notes, maintain paying agencies and hold moneys for payment in trust) or
(ii) need not comply with certain of the restrictive covenants with respect to
the 9 3/8% Indenture, in each case, if the Company, in addition to satisfying
certain other obligations, deposits with the appropriate trustee, in trust, U.S.
legal tender or U.S. Government Obligations (in each case, as defined in the
9 3/8% Indenture) or a combination thereof which, through the payment of
interest thereon and principal in respect thereof in accordance with their
terms, will be sufficient to pay all the principal of and interest on 9 3/8%
Notes to be defeased on the dates such payments are due in accordance with the
terms of 9 3/8% Notes as well as the trustee's fees and expenses.
8 3/4% NOTES
The 8 3/4% Notes mature on June 15, 2007. Interest on the 8 3/4% Notes accrues
at the rate of 8 3/4% per annum and is payable semiannually. The 8 3/4% Notes
are unsecured obligations of the Company, ranking subordinate in right of
payment to all Senior Debt (as defined in
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the indenture governing the 8 3/4% Notes (the "8 3/4% Indenture")) of the
Company and pari passu with the 9 3/8% Notes and the 10 1/2% Notes, and will
rank pari passu with the Notes.
Substantially all of the Company's subsidiaries fully and unconditionally
guarantee the full and prompt payment of principal of all interest on the 8 3/4%
Notes, and of all other obligations under the 8 3/4% Indenture. The indebtedness
evidenced by each such guarantee is subordinated to each Guarantor's Senior Debt
on the same terms as the 8 3/4% Notes are subordinated to the Company's Senior
Debt.
The 8 3/4% Notes are redeemable, at the Company's option, in whole at any time
or in part from time to time, on and after June 15, 2002, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period commencing on June 15 of the year set forth
below, plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002........................................................ 104.375%
2003........................................................ 102.917
2004........................................................ 101.458
2005 and thereafter......................................... 100.000
</TABLE>
In addition, on or prior to June 15, 2000, the Company may redeem the 8 3/4%
Notes with the net cash proceeds of one or more Public Equity Offerings (as
defined in the 8 3/4% Indenture) at a redemption price of 108.75% of the
principal amount thereof, plus accrued and unpaid interest to the redemption
date; provided, however, that after any such redemption at least 75% of the
aggregate principal amount of the 8 3/4% Notes originally issued must be
outstanding. The Company's ability to optionally redeem the 8 3/4% Notes are
subject to restrictions contained in the Senior Credit Facility, which limits
the amount of debt subordinate to the indebtedness under the Senior Credit
Facility that may be redeemed by the Company.
Under the 8 3/4% Indenture, in the event of a change of control (as defined in
the 8 3/4% Indenture) of the Company, each holder of 8 3/4% Notes will have the
right to require the Company to repurchase, in whole or in part, such holder's
8 3/4% Notes at a purchase price equal to 101% of their principal amount, plus
accrued and unpaid interest, if any to the date of repurchase.
The 8 3/4% Indenture contains certain restrictive covenants which, among other
things, impose limitations (subject to certain exceptions) on the Company with
respect to (i) the payment of dividends or other distributions on capital stock
and the purchase, redemption or retirement for value of shares of capital stock
as any warrants, options or other rights for shares of capital stock; (ii) the
incurrence of additional indebtedness; (iii) the incurrence of subsidiary
indebtedness; (iv) the repayment or redemption of subordinated indebtedness
other than in accordance with its scheduled repayment; (v) sales of assets by
the Company; (vi) asset swaps; (vii) transactions with stockholders and
affiliates; (viii) the restriction of certain payments by subsidiaries to their
respective parents; (ix) the creation of liens on the assets of the Company or
its subsidiaries; (x) the incurrence of indebtedness senior to the 8 3/4% Notes
and subordinate to other indebtedness of the Company; (xi) investments by the
Company or its subsidiaries; (xii) the issuance of preferred stock by any of the
Company's subsidiaries; (xiii) sales and leasebacks by the Company or its
subsidiaries; (xiv) the guarantee of indebtedness; (xv) the conduct of
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business other than the ownership and operation of radio broadcast stations and
businesses reasonably related thereto; and (xvi) the merger or sale of all or
substantially all the assets of the Company. Upon the happening of certain
events of default specified in the 8 3/4% Indenture, the trustee for the 8 3/4%
Notes may, and the trustee upon the request of holders of 25% in principal
amount then outstanding of the 8 3/4% Notes shall, or the holders of at least
25% in principal amount of outstanding 8 3/4% Notes may, declare the principal
amount then outstanding of and accrued but unpaid interest, if any, on all of
such 8 3/4% Notes to be due and payable. Upon the happening of certain other
events of default specified in the 8 3/4% Indenture, the unpaid principal of and
accrued but unpaid interest on all outstanding 8 3/4% Notes will automatically
become due and payable without any action by the trustee or the holders of the
8 3/4% Notes.
The Company may terminate its obligations under the 8 3/4% Indenture at any
time, and the obligations of the Guarantors with respect thereto shall
terminate, by delivering all outstanding 8 3/4% Notes of the appropriate series
to the appropriate trustee for cancellation and paying all sums payable by it
thereunder. The Company, at its option, (i) will be discharged from any and all
obligations with respect to the 8 3/4% Notes delivered, and the guarantor will
be discharged from any and all obligations with respect to its guarantee of such
8 3/4% Notes, (except for certain obligations of the Company to register the
transfer or exchange of such 8 3/4% Notes, replace stolen, lost or mutilated
8 3/4% Notes, maintain paying agencies and hold moneys for payment in trust) or
(ii) need not comply with certain of the restrictive covenants with respect to
the 8 3/4% Indenture, in each case, if the Company, in addition to satisfying
certain other obligations, deposits with the appropriate trustee, in trust, U.S.
legal tender or U.S. Government Obligations (in each case, as defined in the
8 3/4% Indenture) or a combination thereof which, through the payment of
interest thereon and principal in respect thereof in accordance with their
terms, will be sufficient to pay all the principal of and interest on 8 3/4%
Notes to be defeased on the dates such payments are due in accordance with the
terms of 8 3/4% Notes as well as the trustee's fees and expenses.
10 1/2% NOTES
The 10 1/2% Notes mature on January 15, 2007. Interest on the 10 1/2% Notes
accrues at the rate of 10 1/2% per annum and is payable semiannually. The
10 1/2% Notes are unsecured obligations of the Company, ranking subordinate in
right of payment to all Senior Debt (as defined in the indenture governing the
10 1/2% Notes (the "10 1/2% Indenture")) of the Company and pari passu with the
9 3/8% Notes and the 8 3/4% Notes, and will rank pari passu with the Notes.
Substantially all of the Company's subsidiaries fully and unconditionally
guarantee the full and prompt payment of principal of all interest on the
10 1/2% Notes, and of all other obligations under the 10 1/2% Indenture. The
indebtedness evidenced by each such guarantee is subordinated to each
Guarantor's Senior Debt on the same terms as the 10 1/2% Notes are subordinated
to the Company's Senior Debt.
Except as described in the immediately following paragraph, the 10 1/2% Notes
may not be redeemed at the option of the Company prior to January 15, 2002.
During the twelve month period beginning January 15 of the years indicated
below, the 10 1/2% Notes are redeemable at the option of the Company, in whole
or in part, on at least 30 but not more than 60 days' notice to each holder of
10 1/2% Notes to be redeemed, at the redemption prices (expressed as percentages
of the principal amount) set forth below, plus any
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<PAGE> 143
accrued and unpaid interest and Liquidated Damages (as defined in the 10 1/2%
Indenture), if any, to the applicable date of redemption.
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002........................................................ 105.250%
2003........................................................ 103.938
2004........................................................ 102.625
2005........................................................ 101.313
2006 and thereafter......................................... 100.000
</TABLE>
In addition, on or prior to January 15, 2000, the Company may redeem the 10 1/2%
Notes with the net cash proceeds of one or more offerings of Equity Interests
(as defined in the 10 1/2% Indenture) at a redemption price of 109.5% of the
principal amount thereof, plus accrued and unpaid interest to the redemption
date; provided, however, that after any such redemption at least 65% of the
aggregate principal amount of the 10 1/2% Notes originally issued must be
outstanding. The Company's ability to optionally redeem the 10 1/2% Notes are
subject to restrictions contained in the Senior Credit Facility, which limits
the amount of debt subordinate to the indebtedness under the Senior Credit
Facility that may be redeemed by the Company.
Under the 10 1/2% Indenture, in the event of a change of control (as defined in
the 10 1/2% Indenture) of the Company, the Company shall be obligated to make an
offer to repurchase all outstanding 10 1/2% Notes at a purchase price equal to
101% of their principal amount, plus accrued and unpaid interest, if any to the
date of repurchase.
The 10 1/2% Indenture contains certain restrictive covenants which, among other
things, impose limitations (subject to certain exceptions) on the Company with
respect to (i) the payment of dividends or other distributions on capital stock
and the purchase, redemption or retirement for value of shares of capital stock
as any warrants, options or other rights for shares of capital stock; (ii) the
incurrence of additional indebtedness; (iii) the incurrence of subsidiary
indebtedness; (iv) the repayment or redemption of subordinated indebtedness
other than in accordance with its scheduled repayment; (v) sales of assets by
the Company; (vi) asset swaps; (vii) transactions with stockholders and
affiliates; (viii) the restriction of certain payments by subsidiaries to their
respective parents; (ix) the creation of liens on the assets of the Company or
its subsidiaries; (x) the incurrence of indebtedness senior to the 10 1/2% Notes
and subordinate to other indebtedness of the Company; (xi) investments by the
Company or its subsidiaries; (xii) the issuance of preferred stock by any of the
Company's subsidiaries; (xiii) sales and leasebacks by the Company or its
subsidiaries; (xiv) the guarantee of indebtedness; (xv) the conduct of business
other than the ownership and operation of broadcast businesses or businesses
related thereto, including media representation and sale of advertising; and
(xvi) the merger or sale of all or substantially all the assets of the Company.
Upon the happening of certain events of default specified in the 10 1/2%
Indenture, the trustee for the 10 1/2% Notes may, and the trustee upon the
request of holders of 25% in principal amount then outstanding of the 10 1/2%
Notes shall, or the holders of at least 25% in principal amount of outstanding
10 1/2% Notes may, declare the principal amount then outstanding of and accrued
but unpaid interest, if any, on all of such 10 1/2% Notes to be due and payable.
Upon the happening of certain other events of default specified in the 10 1/2%
Indenture, the unpaid principal of and accrued but unpaid interest on all
outstanding 10 1/2% Notes will
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<PAGE> 144
automatically become due and payable without any action by the trustee or the
holders of the 10 1/2% Notes.
The Company may terminate its obligations under the 10 1/2% Indenture at any
time, and the obligations of the Guarantors with respect thereto shall
terminate, by delivering all outstanding 10 1/2% Notes of the appropriate series
to the appropriate trustee for cancellation and paying all sums payable by it
thereunder. The Company, at its option, (i) will be discharged from any and all
obligations with respect to the 10 1/2% Notes delivered, and the guarantor will
be discharged from any and all obligations with respect to its guarantee of such
10 1/2% Notes, (except for certain obligations of the Company to register the
transfer or exchange of such 10 1/2% Notes, replace stolen, lost or mutilated
10 1/2% Notes, maintain paying agencies and hold moneys for payment in trust) or
(ii) need not comply with certain of the restrictive covenants with respect to
the 10 1/2% Indenture, in each case, if the Company, in addition to satisfying
certain other obligations, deposits with the appropriate trustee, in trust, U.S.
cash or Government Securities (as defined in the 10 1/2% Indenture) or a
combination thereof which, through the payment of interest thereon and principal
in respect thereof in accordance with their terms, will be sufficient to pay all
the principal of and interest on 10 1/2% Notes to be defeased on the dates such
payments are due in accordance with the terms of 10 1/2% Notes as well as the
trustee's fees and expenses.
8 1/8% NOTES
The 8 1/8% Notes mature on December 15, 2007. Interest on the 8 1/8% Notes
accrues at the rate of 8 1/8% per annum and is payable semiannually. The 8 1/8%
Notes are unsecured obligations of the Company, ranking subordinate in right of
payment to all Senior Debt (as defined in the indenture governing the 8 1/8%
Notes (the "8 1/8% Indenture")) of the Company and pari passu with the 9 3/8%
Notes, the 10 1/2% Notes and the 8 3/4% Notes.
Substantially all of the Company's subsidiaries fully and unconditionally
guarantee the full and prompt payment of principal of all interest on the 8 1/8%
Notes, and of all other obligations under the 8 1/8% Indenture. The indebtedness
evidenced by each such guarantee is subordinated to each Guarantor's Senior Debt
on the same terms as the 8 1/8% Notes are subordinated to the Company's Senior
Debt.
The 8 1/8% Notes are redeemable, at the Company's option, in whole at any time
or in part from time to time, on and after December 15, 2002, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period commencing on December 15 of the year set forth
below, plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2002........................................................ 104.063%
2003........................................................ 102.708
2004........................................................ 101.354
2005 and thereafter......................................... 100.000
</TABLE>
In addition, on or prior to December 15, 2000, the Company may redeem the 8 1/8%
Notes with the net cash proceeds of one or more Public Equity Offerings (as
defined in the 8 1/8% Indenture) at a redemption price of 108.125% of the
principal amount thereof, plus accrued and unpaid interest to the redemption
date; provided, however, that after any such
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<PAGE> 145
redemption at least 75% of the aggregate principal amount of the 8 1/8% Notes
originally issued must be outstanding. The Company's ability to optionally
redeem the 8 1/8% Notes are subject to restrictions contained in the Senior
Credit Facility, which limits the amount of debt subordinate to the indebtedness
under the Senior Credit Facility that may be redeemed by the Company.
Under the 8 1/8% Indenture, in the event of a change of control (as defined in
the 8 1/8% Indenture) of the Company, (i) the Company will have the option, at
any time on or prior to December 15, 2000, to redeem the 8 1/8% Notes, in whole
but not in part, at a redemption price equal to 100% of the principal amount
thereof plus the Applicable Premium (as defined in the 8 1/8% Indenture),
together with accrued and unpaid interest, if any, to the date of redemption,
and (ii) if the Company does not so redeem the 8 1/8% Notes or if such change of
control occurs after December 15, 2000, each holder of 8 1/8% Notes will have
the right to require the Company to repurchase, in whole or in part, such
holder's 8 1/8% Notes at a purchase price equal to 101% of their principal
amount, plus accrued and unpaid interest, if any, to the date of repurchase.
The 8 1/8% Indenture contains certain restrictive covenants which, among other
things, impose limitations (subject to certain exceptions) on the Company with
respect to (i) the payment of dividends or other distributions on capital stock
and the purchase, redemption or retirement for value of shares of capital stock
as any warrants, options or other rights for shares of capital stock; (ii) the
incurrence of additional indebtedness; (iii) the incurrence of subsidiary
indebtedness; (iv) the repayment or redemption of subordinated indebtedness
other than in accordance with its scheduled repayment; (v) sales of assets by
the Company; (vi) asset swaps; (vii) transactions with stockholders and
affiliates; (viii) the restriction of certain payments by subsidiaries to their
respective parents; (ix) the creation of liens on the assets of the Company or
its subsidiaries; (x) the incurrence of indebtedness senior to the 8 1/8% Notes
and subordinate to other indebtedness of the Company; (xi) investments by the
Company or its subsidiaries; (xii) the issuance of preferred stock by any of the
Company's subsidiaries; (xiii) sales and leasebacks by the Company or its
subsidiaries; (xiv) the guarantee of indebtedness; (xv) the conduct of business
other than the ownership and operation of broadcast businesses or businesses
reasonably related thereto; and (xvi) the merger or sale of all or substantially
all the assets of the Company. Upon the happening of certain events of default
specified in the 8 1/8% Indenture, the trustee for the 8 1/8% Notes may, and the
trustee upon the request of holders of 25% in principal amount then outstanding
of the 8 1/8% Notes shall, or the holders of at least 25% in principal amount of
outstanding 8 1/8% Notes may, declare the principal amount then outstanding of
and accrued but unpaid interest, if any, on all of such 8 1/8% Notes to be due
and payable. Upon the happening of certain other events of default specified in
the 8 1/8% Indenture, the unpaid principal of and accrued but unpaid interest on
all outstanding 8 1/8% Notes will automatically become due and payable without
any action by the trustee or the holders of the 8 1/8% Notes.
The Company may terminate its obligations under the 8 1/8% Indenture at any
time, and the obligations of the guarantors with respect thereto shall
terminate, by delivering all outstanding 8 1/8% Notes of the appropriate series
to the appropriate trustee for cancellation and paying all sums payable by it
thereunder. The Company, at its option, (i) will be discharged from any and all
obligations with respect to the 8 1/8% Notes delivered, and the guarantor will
be discharged from any and all obligations with respect to its guarantee of such
8 1/8% Notes, (except for certain obligations of the Company to register the
transfer or
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<PAGE> 146
exchange of such 8 1/8% Notes, replace stolen, lost or mutilated 8 1/8% Notes,
maintain paying agencies and hold moneys for payment in trust) or (ii) need not
comply with certain of the restrictive covenants with respect to the 8 1/8%
Indenture, in each case, if the Company, in addition to satisfying certain other
obligations, deposits with the appropriate trustee, in trust, U.S. legal tender
or U.S. Government Obligations (in each case, as defined in the 8 1/8%
Indenture) or a combination thereof which, through the payment of interest
thereon and principal in respect thereof in accordance with their terms, will be
sufficient to pay all the principal of and interest on 8 1/8% Notes to be
defeased on the dates such payments are due in accordance with the terms of
8 1/8% Notes as well as the trustee's fees and expenses.
6% EXCHANGE DEBENTURES
For a description of the 6% Convertible Subordinated Exchange Debentures due
2012 issuable by Chancellor Media from time to time upon exchange of the $3.00
Convertible Preferred Stock, see "Description of Capital Stock -- Chancellor
Media -- $3.00 Convertible Exchangeable Preferred Stock -- Exchange."
DESCRIPTION OF CAPITAL STOCK
CHANCELLOR MEDIA
COMMON STOCK
Chancellor Media's authorized common stock consists of 200,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock"), approximately
142,614,039 of which were issued and outstanding as of October 31, 1998 and
75,000,000 shares of Class A Common Stock, par value $0.01 per share (the "Class
A Common Stock"), none of which were issued and outstanding as of September 15,
1998.
The shares of Common Stock currently outstanding are validly issued, fully paid
and nonassessable.
It is not contemplated that any shares of Class A Common Stock will be issued at
any time. The Amended and Restated Certificate of Incorporation of Chancellor
Media (the "Chancellor Media Certificate") provides that the issuance of any
shares of Class A Common Stock will require the unanimous affirmative vote of
the Board of Directors of Chancellor Media.
Dividends
Holders of shares of Common Stock and Class A Common Stock are entitled to
receive such dividends as may be declared by the Board of Directors of
Chancellor Media out of funds legally available for such purpose. The Senior
Credit Facility and the certificates of designation governing the $3.00
Convertible Preferred Stock and the 7% Convertible Preferred Stock each directly
restrict, and the 9 3/8% Indenture, the 8 3/4% Indenture, the 10 1/2% Indenture,
8 1/8% Indenture each indirectly restrict, and, assuming completion of the
Offering, the Notes Indenture will indirectly restrict, Chancellor Media's
ability to pay cash dividends on the Common Stock and Class A Common Stock.
Chancellor Media has not declared or paid any dividends on the Common Stock and
Class A Common Stock in the past, and it is not anticipated that Chancellor
Media will
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<PAGE> 147
pay any cash dividends on the Common Stock and Class A Common Stock in the
foreseeable future.
Voting Rights
Holders of shares of Common Stock and Class A Common Stock, each voting as a
separate class, shall be entitled to vote on all matters submitted to a vote of
the stockholders, except as otherwise provided by law. Each share of Common
Stock and Class A Common Stock is entitled to one vote per share. Holders of
Common Stock and Class A Common Stock are not entitled to cumulative votes in
the election of directors.
Under Delaware law, the affirmative vote of the holders of a majority of the
outstanding shares of any class of capital stock of Chancellor Media is required
to approve any amendment to the Chancellor Media Certificate that would increase
or decrease the aggregate number of authorized shares of any class, increase or
decrease the par value of the shares of any class, or modify or change the
powers, preferences or special rights of the shares of any class so as to affect
such class adversely.
Liquidation Rights
Upon liquidation, dissolution, or winding-up of Chancellor Media, the holders of
Common Stock and Class A Common Stock are entitled to share ratably in all
assets available for distribution after payment in full of creditors and the
holders of preferred stock of Chancellor Media.
Transfer Agent
The Bank of New York serves as the Transfer Agent and Registrar for the Common
Stock.
Alien Ownership
The Chancellor Media Certificate restricts the ownership and voting of
Chancellor Media's capital stock, including its Common Stock, in accordance with
the Communications Act and the rules of the FCC, to prohibit ownership of more
than 25% of Chancellor Media's outstanding capital stock (or control of more
than 25% of the voting power it represents) by or for the account of aliens,
foreign governments, or non-U.S. corporations or corporations otherwise subject
to control by such persons or entities. The Chancellor Media Certificate also
prohibits any transfer of Chancellor Media's capital stock that would cause
Chancellor Media to violate this prohibition. In addition, the Chancellor Media
Certificate authorizes the Board of Directors of Chancellor Media to adopt such
provisions as its deems necessary to enforce these prohibitions.
Other Provisions
The holders of Common Stock and Class A Common Stock are not entitled to
preemptive or similar rights. The shares of Common Stock are not subject to
redemption or a sinking fund.
No single shareholder of Chancellor Media holds more than 50.0% of the combined
voting power of Chancellor Media. See "Risk Factors -- Control of the Company."
As a result, a holder of an "attributable" interest in Chancellor Media may
violate the FCC's multiple
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<PAGE> 148
ownership rules or cross interest rules if such holder also has an
"attributable" interest (or, in some cases, a "meaningful" nonattributable
interest) in other television or radio stations, or in daily newspapers,
depending on the number and location of those radio or television stations or
daily newspapers. Such a stockholder may also be restricted in the companies in
which such stockholder may invest. See "Business -- Federal Regulation of Radio
Broadcasting Industry -- Ownership Matters."
$3.00 CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
Dividends
Holders of $3.00 Convertible Preferred Stock are entitled to receive, when, as
and if declared by the Board of Directors out of legally available funds, cash
dividends at an annual rate of $3.00 per share, payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year (each a "Dividend
Payment Date"), beginning September 15, 1997. Dividends will accrue and be
cumulative from the most recent date to which dividends have been paid or, if
none have been paid, from the date of first issuance of the $3.00 Convertible
Preferred Stock and will be payable to holders of record on the March 1, June 1,
September 1 and December 1 immediately preceding the relevant Dividend Payment
Date. No interest, or sum of money in lieu of interest, will be payable in
respect of any accrued and unpaid dividends.
The $3.00 Convertible Preferred Stock has priority as to dividends over the
Common Stock and any other series or class of the Company's stock that ranks
junior to the $3.00 Convertible Preferred Stock as to dividends. Notwithstanding
the foregoing, the $3.00 Convertible Preferred Stock shall rank junior as to
dividends and rights upon a liquidation, dissolution or winding-up of the
Company to any and all classes or series of capital stock (other than Common
Stock) of the Company, whether currently issued or issued in the future, that
does not by its terms expressly provide that it ranks on a parity with or junior
to the $3.00 Convertible Preferred Stock as to dividends and rights upon a
liquidation, dissolution or winding-up of the Company.
Liquidation Rights
Upon liquidation, dissolution or winding-up of Chancellor Media, subject to the
payment in full, or until provision has been made for the payment in full, of
all claims of creditors of Chancellor Media, holders of $3.00 Convertible
Preferred Stock are entitled to receive the liquidation preference of $50.00 per
share, plus an amount equal to any accrued and unpaid dividends, whether or not
declared, to the payment date, before any payment or distribution is made to the
holders of Common Stock or any other series or class of stock hereafter issued
that ranks junior as to liquidation rights to the $3.00 Convertible Preferred
Stock.
Voting Rights
The holders of $3.00 Convertible Preferred Stock have no voting rights except as
described below or as required by law. In exercising any voting rights, each
outstanding share of $3.00 Convertible Preferred Stock will be entitled to one
vote, although shares held by Chancellor Media or any entity controlled by
Chancellor Media will have no voting rights.
Whenever dividends on the $3.00 Convertible Preferred Stock are in arrears in an
aggregate amount equal to at least six quarterly dividends (whether or not
consecutive),
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<PAGE> 149
the size of Chancellor Media's board of directors will be increased by two, and
the holders of $3.00 Convertible Preferred Stock, will be entitled to elect two
additional directors to the Board of Directors at, subject to certain
limitations, any annual meeting of stockholders at which directors are to be
elected held during the period when the dividends remain in arrears or, under
certain circumstances, at a special meeting of stockholders. These voting rights
will terminate when all dividends in arrears and for the current quarterly
period have been paid in full or declared and set apart for payment. The term of
office of the additional directors so elected will terminate immediately upon
that payment or provision for payment.
Under Delaware law, holders of the $3.00 Convertible Preferred Stock will be
entitled to vote as a class upon a proposed amendment to the Chancellor Media
Certificate, whether or not entitled to vote thereon by the Chancellor Media
Certificate, if the amendment would increase or decrease the aggregate number of
authorized shares of such class, increase or decrease the par value of the
shares of such class, or alter or change the powers, preferences, or special
rights of the shares of such class so as to affect them adversely.
Optional Redemption
The $3.00 Convertible Preferred Stock may not be redeemed prior to June 16,
1999. Thereafter, the $3.00 Convertible Preferred Stock may be redeemed by
Chancellor Media, at its option, in whole or in part at any time, if redeemed
during the 12-month period beginning June 15 of any year specified below (June
16 in the case of 1999) at the following redemption prices (expressed as
percentages of the liquidation preference thereof):
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
1999........................................................ 104.80%
2000........................................................ 104.20
2001........................................................ 103.60
2002........................................................ 103.00
2003........................................................ 102.40
2004........................................................ 101.80
2005........................................................ 101.20
2006........................................................ 100.60
2007 and thereafter......................................... 100.00
</TABLE>
plus in each case accrued and unpaid dividends, whether or not declared, to the
redemption date.
The foregoing is subject to the proviso that on or prior to June 15, 2000 the
$3.00 Convertible Preferred Stock may not be redeemed at the option of
Chancellor Media unless the closing price of Chancellor Media's Common Stock has
equalled or exceeded 150% of the conversion price at such time for at least 20
out of any 30 consecutive trading days ending within 15 days before the notice
of redemption is first mailed.
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<PAGE> 150
Conversion Rights
Each holder of $3.00 Convertible Preferred Stock will have the right at any time
at the holder's option to convert any and all shares of $3.00 Convertible
Preferred Stock into Common Stock at a conversion price (subject to adjustment
as described below) of $50.00 per share of underlying Common Stock (equivalent
to a conversion rate of 1.00 share of Common Stock per share of $3.00
Convertible Preferred Stock). If the $3.00 Convertible Preferred Stock is called
for redemption, the conversion right will terminate at the close of business on
the redemption date fixed by the Board of Directors.
Change of Control. If there occurs a Change of Control (as defined in the
certificate of designation for the $3.00 Convertible Preferred Stock) with
respect to Chancellor Media, then shares of the $3.00 Convertible Preferred
Stock may be converted, at the option of the holder thereof at any time from the
date of such Change of Control until the expiration of 45 days after the date of
a note by the Company to all holders of the $3.00 Convertible Preferred Stock of
the occurrence of the Change of Control, into the number of shares of Common
Stock determined by dividing (i) the redemption price for the $3.00 Convertible
Preferred Stock (see "-- Optional Redemption") in effect on the date of the
Change of Control by (ii) the adjusted conversion price.
Exchange
Shares of $3.00 Convertible Preferred Stock will be exchangeable at the option
of Chancellor Media, in whole but not in part, on any March 15, June 15,
September 15 or December 15, commencing September 15, 2000, through the issuance
of Chancellor Media's 6% Subordinated Exchange Debentures due 2012 (the "6%
Exchange Debentures") in redemption of and in exchange for shares of $3.00
Convertible Preferred Stock, provided certain conditions are met. Holders of the
$3.00 Convertible Preferred Stock will be entitled to receive 6% Exchange
Debentures at the rate of $50.00 principal amount of 6% Exchange Debentures for
each share of $3.00 Convertible Preferred Stock.
7% CONVERTIBLE PREFERRED STOCK
Dividends
Holders of 7% Convertible Preferred Stock are entitled to receive, when, as and
if declared by the Board of Directors of Chancellor Media out of legally
available funds, cash dividends at an annual rate equal to 7% of the liquidation
preference per share, payable quarterly.
The 7% Convertible Preferred Stock has priority as to dividends over the Common
Stock and Class A Common Stock of Chancellor Media and any other series or class
of Chancellor Media's stock that ranks junior to the 7% Convertible Preferred
Stock as to dividends (the "Junior Dividend Stock"). Notwithstanding the
foregoing, the 7% Convertible Preferred Stock shall rank junior as to dividends,
redemption payments and rights upon a liquidation, dissolution or winding-up of
Chancellor Media to any and all classes or series of capital stock (other than
common stock) of Chancellor Media, issued in the future, that does not by its
terms expressly provide that it ranks on a parity with or junior to the 7%
Convertible Preferred Stock as to dividends and rights upon a liquidation,
dissolution or winding-up of Chancellor Media.
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<PAGE> 151
No dividend (other than dividends payable solely in common stock, any Junior
Dividend Stock or warrants or other rights to acquire such common stock or
Junior Dividend Stock) may be paid or declared and set apart for payment on, and
no purchase, redemption or other acquisition shall be made by Chancellor Media
of, the Common Stock of Chancellor Media or Junior Dividend Stock unless all
accrued and unpaid dividends on the 7% Convertible Preferred Stock, including
the full dividend for the then-current quarterly dividend period, shall have
been paid or declared and set apart for payment without interest.
Except as provided below, Chancellor Media may not pay dividends on any class or
series of stock issued in the future having parity with the 7% Convertible
Preferred Stock as to dividends ("Parity Dividend Stock") unless it has paid or
declared and set apart for payment or contemporaneously pays or declares and
sets apart for payment all accrued and unpaid dividends for all prior dividend
payment periods on the 7% Convertible Preferred Stock. In addition, except as
provided below, Chancellor Media may not pay dividends on the 7% Convertible
Preferred Stock unless it has paid or declared and set apart for payment or
contemporaneously pays or declares and sets apart for payment all accrued and
unpaid dividends for all prior dividend payment periods on the Parity Dividend
Stock. Whenever all accrued dividends in respect of prior dividend payment
periods are not paid in full on 7% Convertible Preferred Stock and on any Parity
Dividend Stock, all dividends declared on the 7% Convertible Preferred Stock and
the Parity Dividend Stock will be declared and made pro rata so that the amount
of dividends declared on the 7% Convertible Preferred Stock and the Parity
Dividend Stock will bear the same ratio that accrued and unpaid dividends in
respect of prior dividend payment periods on the 7% Convertible Preferred Stock
and the Parity Dividend Stock bear to each other. The $3.00 Convertible
Preferred Stock constitutes "Parity Dividend Stock" for purposes of the 7%
Convertible Preferred Stock.
Chancellor Media may not purchase any shares of the 7% Convertible Preferred
Stock or any Parity Dividend Stock (except for consideration payable in common
stock or Junior Dividend Stock) or redeem fewer than all the shares of the 7%
Convertible Preferred Stock and Parity Dividend Stock then outstanding if
Chancellor Media has failed to pay any accrued dividend on the 7% Convertible
Preferred Stock or on any Parity Dividend Stock on a stated payment date.
Notwithstanding the foregoing, in such event, Chancellor Media may purchase or
redeem fewer than all the shares of the 7% Convertible Preferred Stock and
Parity Dividend Stock if such repurchase or redemption is made pro rata so that
the amounts purchased or redeemed bear to each other the same ratio that the
required redemption payments on the shares of the 7% Convertible Preferred Stock
and any Parity Dividend Stock then outstanding bear to each other.
If Chancellor Media issues any series or class of stock that ranks senior as to
dividends to the 7% Convertible Preferred Stock ("Senior Dividend Stock") and
fails to pay or declare and set apart for payment accrued and unpaid dividends
on any Senior Dividend Stock (except to the extent allowed by the terms of the
Senior Dividend Stock), Chancellor Media may not pay or declare and set apart
for payment any dividend on the 7% Convertible Preferred Stock unless and until
all accrued and unpaid dividends on the Senior Dividend Stock, including the
full dividends for the then current dividend period, have been paid or declared
and set apart for payment without interest.
145
<PAGE> 152
Liquidation Rights
In the case of the voluntary or involuntary liquidation, dissolution or winding
up of Chancellor Media, subject to the payment in full, or until provision has
been made for the payment in full, of all claims of creditors of Chancellor
Media, holders of 7% Convertible Preferred Stock are entitled to receive the
liquidation preference of the 7% Convertible Preferred Stock, plus an amount
equal to any accrued and unpaid dividends, whether or not declared, to the
payment date, before any payment or distribution is made to the holders of
common stock or any other series or class of stock issued in the future that
ranks junior as to liquidation rights to the 7% Convertible Preferred Stock
("Junior Liquidation Stock"). Holders of 7% Convertible Preferred Stock will not
be entitled to receive the liquidation preference of their shares until the
liquidation preference of any other series or class of stock that ranks senior
as to liquidation rights to the 7% Convertible Preferred Stock ("Senior
Liquidation Stock"), if any, and any creditors of Chancellor Media have been
paid in full. The holders of 7% Convertible Preferred Stock and any series or
class of stock that ranks on a parity as to liquidation rights with the 7%
Convertible Preferred Stock ("Parity Liquidation Stock") are entitled to share
ratably, in accordance with the respective preferential amounts payable on their
stock, in any distribution (after payment of the liquidation preference on any
Senior Liquidation Stock) that is not sufficient to pay in full the aggregate
liquidation preference on both the 7% Convertible Preferred Stock and on any
Parity Liquidation Stock. The $3.00 Convertible Preferred Stock constitutes
"Parity Liquidation Stock" for purposes of the 7% Convertible Preferred Stock.
Voting Rights
The holders of 7% Convertible Preferred Stock have no voting rights except as
described below or as required by law.
Whenever dividends on the 7% Convertible Preferred Stock are in arrears in
aggregate amount equal to at least six quarterly dividends (whether or not
consecutive), the size of Chancellor Media's Board of Directors will be
increased by two, and the holders of 7% Convertible Preferred Stock, voting
separately as a class together with holders of any Parity Dividend Stock of
Chancellor Media then having voting rights, will be entitled to elect two
additional directors to the Board of Directors of Chancellor Media at, subject
to certain limitations, any annual meeting of stockholders at which directors
are to be elected held during the period when the dividends remain in arrears
or, under certain circumstances, at a special meeting of stockholders. These
voting rights will terminate when all dividends in arrears and for the current
quarterly period have been paid in full or declared and set apart for payment.
The term of office of the additional directors so elected will terminate
immediately upon that payment or provision for payment.
In addition, so long as any 7% Convertible Preferred Stock is outstanding,
Chancellor Media may not, without the affirmative vote or consent of the holders
of at least 66 2/3% of all outstanding shares of 7% Convertible Preferred Stock
and outstanding Parity Dividend Stock, voting as a single class (i) amend, alter
or repeal (by merger or otherwise) any provision of the certificate of
designation for the 7% Convertible Preferred Stock, the Chancellor Media
Certificate or the bylaws of Chancellor Media so as to affect adversely the
relative rights, preferences, qualifications, limitations of restrictions of the
7% Convertible Preferred Stock or (ii) effect any reclassification of the 7%
Convertible Preferred Stock.
146
<PAGE> 153
Change of Control
The certificate of designation for the 7% Convertible Preferred Stock provides
that, upon the occurrence of a change of control (as defined in such certificate
of designation), each holder will have the right to require that Chancellor
Media purchase all or a portion of such holder's 7% Convertible Preferred Stock
in cash at a purchase price equal to 101% of the liquidation preference thereof,
plus, without duplication, all accumulated and unpaid dividends per share to the
date of repurchase. If the repurchase of the 7% Preferred Stock would violate or
constitute a default under the Senior Credit Facility or other indebtedness of
Chancellor Media, then, pursuant to the certificate of designation for the 7%
Convertible Preferred Stock, Chancellor Media will either (A) repay in full all
such indebtedness or (B) obtain the requisite consents, if any, under such
indebtedness required to permit the repurchase of the 7% Convertible Preferred
Stock.
Redemption at Option of Chancellor Media
The 7% Convertible Preferred Stock may not be redeemed prior to January 19,
2000. Thereafter, the 7% Convertible Preferred Stock may be redeemed by
Chancellor Media, at its option (subject to contractual and other restrictions
with respect thereto, including limitations under the Senior Credit Facility,
the 9 3/8% Indenture, the 8 3/4% Indenture, the 10 1/2% Indenture, and, assuming
completion of the Offering, the Indenture, and to the legal availability of
funds therefor), in whole or in part at any time, if redeemed during the 12-
month period beginning January 15 (January 19 in the case of 2000), of any year
specified below at the following redemption prices (expressed as percentages of
the liquidation preference thereof):
<TABLE>
<CAPTION>
YEAR DIVIDEND
---- --------
<S> <C>
2000........................................................ 104.90%
2001........................................................ 104.20
2002........................................................ 103.50
2003........................................................ 102.80
2004........................................................ 102.10
2005........................................................ 101.40
2006........................................................ 100.70
2007 and thereafter......................................... 100.00
</TABLE>
plus in each case accrued and unpaid dividends, whether or not declared, to the
redemption date.
Conversion Rights
Each holder of 7% Convertible Preferred Stock will have the right, at the
holder's option, to convert any or all shares of 7% Convertible Preferred Stock
into Common Stock at any time at a conversion price (subject to adjustment) of
$36.19 per share of underlying Common Stock. If the 7% Convertible Preferred
Stock is called for redemption, the conversion right, with respect to the called
shares of 7% Convertible Preferred Stock, will terminate at the close of
business on the redemption date fixed by the Board of Directors of Chancellor
Media.
147
<PAGE> 154
CMCLA
The authorized capital stock of CMCLA as of August 31, 1998 consists of 1,040
shares of common stock, par value $.01 per share, 1,000 of which are owned of
record and beneficially by CMHC and 40 of which are owned of record and
beneficially by a subsidiary of CMHC, and 10,000,000 shares of preferred stock,
par value $.01 per share, none of which shares are issued and outstanding.
148
<PAGE> 155
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material federal income tax considerations
relevant to the exchange of Old Notes for New Notes. The discussion is based
upon the Internal Revenue Code of 1986, as amended, Treasury regulations,
Internal Revenue Service rulings and pronouncements, and judicial decisions now
in effect, all of which are subject to change at any time by legislative,
judicial or administrative action. Any such changes may be applied retroactively
in a manner that could adversely affect a holder of the New Notes. The
description does not consider the effect of any applicable foreign, state, local
or other tax laws or estate or gift tax considerations.
EACH HOLDER SHOULD CONSULT HIS OWN TAX ADVISOR AS TO THE PARTICULAR TAX
CONSEQUENCES TO IT OF EXCHANGING OLD NOTES FOR NEW NOTES, INCLUDING THE
APPLICABILITY AND EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF OLD NOTES FOR NEW NOTES
The exchange of Old Notes for New Notes pursuant to the exchange offer should
not constitute a sale or an exchange for federal income tax purposes. The holder
will have a basis for the New Notes equal to the basis of the Old Notes and the
holder's holding period for the New Notes will include the period during which
the Old Notes were held. Accordingly, such exchange should have no federal
income tax consequences to holders of Old Notes.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account in exchange for
Old Notes pursuant to the exchange offer, where such Old Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Notes received in exchange for Old Notes where such Old
Notes were acquired as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
consummation of the exchange offer, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 1998, all dealers effecting
transactions in the New Notes may be required to deliver a Prospectus.
The Company and the Guarantors will not receive any proceeds from any sale of
New Notes by broker-dealers. New Notes received by broker-dealers for their own
account pursuant to the exchange offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related
to such prevailing market prices or negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such New Notes. Any broker-dealer that
resells New Notes that were received by it for its own account pursuant to the
exchange offer and any broker or dealer that participates in a distribution of
such New Notes may be deemed
149
<PAGE> 156
to be an "underwriter" within the meaning of the Securities Act, and any profit
on any such resale of New Notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Registration Statement is declared effective,
the Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal or otherwise. The Company has agreed
to pay all expenses incident to the Exchange Offer (including the expenses of
one counsel for the holders of the Notes) other than commissions or concessions
of any broker-dealers and will indemnify holders of the Old Notes (including any
broker-dealers) against certain liabilities, including certain liabilities under
the Securities Act.
LEGAL MATTERS
The validity of the New Notes offered hereby will be passed upon for the Company
by Weil, Gotshal & Manges LLP, Dallas, Texas and New York, New York.
EXPERTS
The consolidated financial statements of Chancellor Media Corporation of Los
Angeles and Subsidiaries as of December 31, 1997 and for the year then ended
included in this Registration Statement, have been included herein in reliance
on the report of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of that firm as experts in accounting and auditing.
The consolidated financial statements of Chancellor Media Corporation of Los
Angeles and subsidiaries, the combined financial statements of WMZQ Inc. and
Viacom Broadcasting East Inc., the combined financial statements of Riverside
Broadcasting Co., Inc. and WAXQ Inc., the financial statements of WLIT Inc., the
combined financial statements of KYSR Inc. and KIBB Inc. and the financial
statements of WDAS-AM/FM (station owned and operated by Beasley FM Acquisition
Corp.), included herein have been audited by KPMG Peat Marwick LLP, independent
certified public accountants, to the extent and for the periods indicated in
their reports thereon. Such financial statements have been included herein in
reliance upon the reports of KPMG Peat Marwick LLP included herein and upon the
authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Chancellor Radio Broadcasting Company
and Subsidiaries as of December 31, 1996 and 1995 and for each of the three
years in the period ended December 31, 1996 included in this Registration
Statement, have been included herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
150
<PAGE> 157
The combined financial statements of Colfax Communications, Inc. Radio Group as
of December 31, 1996 and 1995 and for each of the three years in the period
ended December 31, 1996, included in this Prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said report.
The financial statements of the Outdoor Advertising Division of Whiteco
Industries, Inc. as of December 31, 1996 and 1997 and for each of the three
years in the period ended December 31, 1997 included in this Prospectus, have
been included herein in reliance on the report of BDO Seidman, LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
151
<PAGE> 158
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
PRO FORMA FINANCIAL INFORMATION
The unaudited pro forma condensed combined financial statements of
Chancellor Media Corporation of Los Angeles ("CMCLA" and, together with its
subsidiaries, the "Company") are presented using the purchase method of
accounting for all acquisitions and reflect the combination of consolidated
historical financial data of the Company and each of the companies acquired in
the transactions completed by the Company during 1997 and 1998 and the
elimination of the consolidated historical data of the stations disposed in the
transactions completed by the Company during 1997 and 1998 (the "Completed
Transactions"). The unaudited pro forma condensed combined balance sheet data at
June 30, 1998 presents adjustments for the Completed Transactions, the 12 1/4%
Preferred Stock Consent Solicitation and 12 1/4% Debentures Tender Offer, the
offering of $750,000 aggregate principal amount of 9% Senior Subordinated Notes
due 2008 which was completed on September 30, 1998 (the "9% Notes Offering") and
the Pending Transactions (excluding the Petry Acquisition and the Pegasus
Acquisition) as if each such transaction had occurred at June 30, 1998. The
unaudited pro forma condensed combined statement of operations data for the
twelve months ended December 31, 1997 and the six months ended June 30, 1998
presents adjustments for the Completed Transactions, financing transactions
undertaken by the Company and CRBC during 1997, the 1998 Financing Transactions
and the Pending Transactions (excluding the Petry Acquisition and the Pegasus
Acquisition), as if each such transaction occurred on January 1, 1997. The Petry
Acquisition and the Pegasus Acquisition are excluded from the pro forma
information included in this Prospectus for a number of reasons including: (a)
uncertainties regarding on what terms, and in some areas, whether such
transactions will be consummated, (b) whether such acquisition will be
consummated by the Company or another stand-alone entity formed by Chancellor
Media, or (c) the availability of appropriate financial information. In the
opinion of management of the Company, such information is not material to such
pro forma presentations, either individually or in the aggregate.
The purchase method of accounting has been used in the preparation of the
unaudited pro forma condensed combined financial statements. Under this method
of accounting, the aggregate purchase price is allocated to assets acquired and
liabilities assumed based on their estimated fair values. For purposes of the
unaudited pro forma condensed combined financial statements, the purchase prices
of the assets acquired in the Completed Transactions have been allocated based
primarily on information furnished by management of the acquired or to be
acquired assets. The final allocation of the respective purchase prices of the
assets acquired in the Completed Transactions are determined a reasonable time
after consummation of such transactions and are based on a complete evaluation
of the assets acquired and liabilities assumed. Accordingly, the information
presented herein may differ from the final purchase price allocation; however,
such allocations are not expected to differ materially from the preliminary
amounts.
In the opinion of the Company's management, all adjustments have been made
that are necessary to present fairly the pro forma data.
The unaudited pro forma condensed combined financial statements should be
read in conjunction with the respective financial statements and related notes
thereto of the Company which have previously been reported. The unaudited pro
forma condensed combined financial statements are presented for illustrative
purposes only and are not necessarily indicative of the results of operations or
financial position that would have been achieved had the transactions reflected
therein been consummated as of the dates indicated, or of the results of
operations or financial positions for any future periods or dates.
P-1
<PAGE> 159
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
UNAUDITED PRO FORMA BALANCE SHEET
AT JUNE 30, 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
PRO FORMA COMPANY PRO FORMA
ADJUSTMENTS AS ADJUSTED ADJUSTMENTS
COMPANY FOR THE FOR THE FOR THE
HISTORICAL COMPLETED COMPLETED PENDING COMPANY
AT 6/30/98 TRANSACTIONS TRANSACTIONS TRANSACTIONS(5) PRO FORMA
---------- ------------ ------------ --------------- ----------
<S> <C> <C> <C> <C> <C>
ASSETS:
Current assets...................................... $ 336,986 $ 15,399(1) $ 349,816 $ 28,760 $ 378,576
(170)(2)
(2,399)(3)
Note receivable from affiliate...................... 150,000 -- 150,000 (150,000) --
Property and equipment, net......................... 166,778 148,109(1) 314,887 93,027 407,914
Intangible assets, net.............................. 4,503,891 593,644(1) 5,097,535 1,774,792 6,872,327
Other assets........................................ 123,941 31,325(1) 175,266 1,458 170,724
170(2) (6,000)
(170)(3)
20,000(4)
---------- --------- ---------- ---------- ----------
Total assets................................ $5,281,596 $ 805,908 $6,087,504 $1,742,037 $7,829,541
========== ========= ========== ========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY:
Liabilities
Current liabilities................................. $ 160,211 $ 8,110(1) $ 166,492 $ 6,441 $ 172,933
(1,829)(3)
Long-term debt...................................... 2,278,000 720,887(1) 3,161,015 1,683,858 4,844,873
119,445(2)
22,683(3)
750,000(4)
(730,000)(4)
Deferred tax liabilities............................ 320,959 51,400(1) 364,160 42,191 406,351
(8,199)(3)
Other liabilities................................... 53,625 8,080(1) 61,705 -- 61,705
---------- --------- ---------- ---------- ----------
Total liabilities........................... 2,812,795 940,577 3,753,372 1,732,490 5,485,862
Redeemable preferred stock.......................... 119,445 (119,445)(2) -- --
STOCKHOLDER'S EQUITY:
Common stock........................................ 1 -- 1 -- 1
Additional paid in capital.......................... 2,581,765 -- 2,581,765 -- 2,581,765
Accumulated deficit................................. (232,410) (15,224)(3) (247,634) 9,547 (238,087)
---------- --------- ---------- ---------- ----------
Total stockholder's equity.................. 2,349,356 (15,224) 2,334,132 9,547 2,343,679
---------- --------- ---------- ---------- ----------
Total liabilities and stockholder's
equity.................................... $5,281,596 $ 805,908 $6,087,504 $1,742,037 $7,829,541
========== ========= ========== ========== ==========
</TABLE>
See accompanying notes to Unaudited Pro Forma Condensed Combined Financial
Statements
P-2
<PAGE> 160
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS COMPANY AS
COMPLETED FOR THE ADJUSTED FOR PENDING
COMPANY TRANSACTIONS COMPLETED COMPLETED TRANSACTIONS
YEAR ENDED DECEMBER 31, 1997 HISTORICAL HISTORICAL(6) TRANSACTIONS TRANSACTIONS HISTORICAL(16)
---------------------------- ---------- ------------- ------------ ------------ --------------
<S> <C> <C> <C> <C> <C>
Gross revenues...................................... $663,804 $605,321 $ (17,651)(7) $1,250,631 $219,795
(843)(8)
Less: agency commissions............................ (81,726) (59,920) -- (141,646) (20,128)
-------- -------- --------- ---------- --------
Net revenues........................................ 582,078 545,401 (18,494) 1,108,985 199,667
Operating expenses excluding depreciation and
amortization...................................... 316,248 322,666 (14,395)(7) 624,519 109,158
Depreciation and amortization....................... 185,982 62,702 (2,677)(7) 400,264 19,354
154,257(9) --
Corporate general and administrative................ 21,442 17,318 (1,842)(10) 36,918 6,555
Merger expense...................................... -- 6,124 (6,124)(11) -- --
Restructuring charge................................ -- 15,958 -- 15,958 --
Stock option compensation........................... -- 3,083 -- 3,083 --
Profit participation fee............................ -- -- -- -- 2,322
-------- -------- --------- ---------- --------
Operating income (loss)............................. 58,406 117,550 (147,713) 28,243 62,278
Interest expense.................................... 85,017 88,368 (579)(7) 253,646 728
80,840(12)
Interest income..................................... (1,922) (753) -- (2,675) (513)
Gain on disposition of assets....................... (18,380) -- -- (18,380) --
Other (income) expense.............................. 383 1,591 885(13) 2,859 (3,190)
-------- -------- --------- ---------- --------
Income (loss) before income taxes................... (6,692) 28,344 (228,859) (207,207) 65,253
Income tax expense (benefit)........................ 7,802 18,700 (93,525)(14) (67,023) 1,825
-------- -------- --------- ---------- --------
Net income (loss)................................... (14,494) 9,644 (135,334) (140,184) 63,428
Preferred stock dividends........................... 12,901 27,321 (40,222)(15) -- --
-------- -------- --------- ---------- --------
Income (loss) attributable to common stock.......... $(27,395) $(17,677) $ (95,112) $ (140,184) $ 63,428
======== ======== ========= ========== ========
Broadcast cash flow............................... $265,830 $222,735 $ (4,099) $ 484,466 $ 90,509
======== ======== ========= ========== ========
<CAPTION>
PRO FORMA
ADJUSTMENTS
FOR THE
PENDING COMPANY
YEAR ENDED DECEMBER 31, 1997 TRANSACTIONS PRO FORMA
---------------------------- ------------ ----------
<S> <C> <C>
Gross revenues...................................... $ -- $1,470,426
Less: agency commissions............................ -- (161,774)
--------- ----------
Net revenues........................................ -- 1,308,652
Operating expenses excluding depreciation and
amortization...................................... -- 733,677
Depreciation and amortization....................... 97,892(17) 517,510
--
Corporate general and administrative................ -- 43,473
Merger expense...................................... -- --
Restructuring charge................................ -- 15,958
Stock option compensation........................... -- 3,083
Profit participation fee............................ (2,322)(18) --
--------- ----------
Operating income (loss)............................. (95,570) (5,049)
Interest expense.................................... 117,142(19) 371,516
--
Interest income..................................... -- (3,188)
Gain on disposition of assets....................... -- (18,380)
Other (income) expense.............................. -- (331)
--------- ----------
Income (loss) before income taxes................... (212,712) (354,666)
Income tax expense (benefit)........................ (62,470)(20) (127,668)
--------- ----------
Net income (loss)................................... (150,242) (226,998)
Preferred stock dividends........................... -- --
--------- ----------
Income (loss) attributable to common stock.......... $(150,242) $ (226,998)
========= ==========
Broadcast cash flow............................... $ -- $ 574,975
========= ==========
</TABLE>
See accompanying notes to Unaudited Pro Forma Condensed Combined Financial
Statements
P-3
<PAGE> 161
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
ADJUSTMENTS COMPANY AS ADJUSTMENTS
COMPLETED FOR THE ADJUSTED FOR PENDING FOR THE
COMPANY TRANSACTIONS COMPLETED COMPLETED TRANSACTIONS PENDING
SIX MONTHS ENDED JUNE 30, 1998 HISTORICAL HISTORICAL(6) TRANSACTIONS TRANSACTIONS HISTORICAL(16) TRANSACTIONS
------------------------------ ---------- ------------- ------------ ------------ -------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues..................... $ 626,011 $62,111 $ -- $ 688,122 $105,700 $ --
Less: agency commissions........... (70,744) (8,055) -- (78,799) (9,342) --
--------- ------- -------- --------- -------- ---------
Net revenues....................... 555,267 54,056 -- 609,323 96,358 --
Operating expenses excluding
depreciation and amortization.... 316,862 24,601 -- 341,463 49,953 --
Depreciation and amortization...... 193,060 9,193 16,807(9) 219,060 8,782 49,579(17)
Corporate general and
administrative................... 15,079 777 -- 15,856 3,755 --
Executive severance charge......... 59,475 -- -- 59,475 -- --
Profit participation fee........... -- -- -- -- 1,161 (1,161)(18)
--------- ------- -------- --------- -------- ---------
Operating income (loss)............ (29,209) 19,485 (16,807) (26,531) 32,707 (48,418)
Interest expense................... 92,358 10,433 24,032(12) 126,823 329 58,606(19)
Interest income.................... (5,273) (273) -- (5,546) (45) --
Gain on disposition of
representation contracts......... (11,270) -- -- (11,270) -- --
Other (income) expense............. (3,559) (161) 428(13) (3,292) 38 --
--------- ------- -------- --------- -------- ---------
Income (loss) before income
taxes............................ (101,465) 9,486 (41,267) (133,246) 32,385 (107,024)
Income tax expense (benefit)....... (16,928) -- (29,033)(14) (45,961) 764 (31,469)(20)
--------- ------- -------- --------- -------- ---------
Net income (loss).................. (84,537) 9,486 (12,234) (87,285) 31,621 (75,555)
Preferred stock dividends.......... 16,702 -- (16,702)(15) -- -- --
--------- ------- -------- --------- -------- ---------
Income (loss) attributable to
common stock..................... $(101,239) $ 9,486 $ 4,468 $ (87,285) $ 31,621 $ (75,555)
========= ======= ======== ========= ======== =========
Broadcast cash flow.............. $ 238,405 $29,455 $ -- $ 267,860 $ 46,405 $ --
========= ======= ======== ========= ======== =========
<CAPTION>
COMPANY
SIX MONTHS ENDED JUNE 30, 1998 PRO FORMA
------------------------------ ---------
<S> <C>
Gross revenues..................... $ 793,822
Less: agency commissions........... (88,141)
---------
Net revenues....................... 705,681
Operating expenses excluding
depreciation and amortization.... 391,416
Depreciation and amortization...... 277,421
Corporate general and
administrative................... 19,611
Executive severance charge......... 59,475
Profit participation fee........... --
---------
Operating income (loss)............ (42,242)
Interest expense................... 185,758
Interest income.................... (5,591)
Gain on disposition of
representation contracts......... (11,270)
Other (income) expense............. (3,254)
---------
Income (loss) before income
taxes............................ (207,885)
Income tax expense (benefit)....... (76,666)
---------
Net income (loss).................. (131,219)
Preferred stock dividends.......... --
---------
Income (loss) attributable to
common stock..................... $(131,219)
=========
Broadcast cash flow.............. $ 314,265
=========
</TABLE>
See accompanying notes to Unaudited Pro Forma Condensed Combined Financial
Statements
P-4
<PAGE> 162
ADJUSTMENTS TO UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET RELATED TO
THE COMPLETED TRANSACTIONS
(1) Reflects the Completed Transactions that were completed after June 30, 1998
as follows:
<TABLE>
<CAPTION>
PURCHASE PRICE ALLOCATION
---------------------------------------------------------
PROPERTY AND
COMPLETED PURCHASE CURRENT EQUIPMENT, INTANGIBLE OTHER
TRANSACTIONS PRICE ASSETS NET ASSETS, NET ASSETS
------------ -------- ------- ------------ ----------- -------
<S> <C> <C> <C> <C> <C>
Martin Acquisition(a)........................ $621,117 $15,399 $143,700 $523,283 $ 6,325
Z Spanish Acquisition(b)..................... 25,000 -- -- -- 25,000
Primedia Acquisition(c)...................... 74,770 -- 4,409 70,361 --
-------- ------- -------- -------- -------
$720,887 $15,399 $148,109 $593,644 $31,325
======== ======= ======== ======== =======
<CAPTION>
PURCHASE PRICE ALLOCATION FINANCING
--------------------------------------- -----------
DEFERRED INCREASE IN
COMPLETED CURRENT TAX OTHER LONG-TERM
TRANSACTIONS LIABILITIES LIABILITIES LIABILITIES DEBT
------------ ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Martin Acquisition(a)........................ $(8,110) $(51,400) $(8,080) $621,117
Z Spanish Acquisition(b)..................... -- -- -- 25,000
Primedia Acquisition(c)...................... -- -- -- 74,770
------- -------- ------- --------
$(8,110) $(51,400) $(8,080) $720,887
======= ======== ======= ========
</TABLE>
- ---------------
(a) On July 31, 1998, the Company acquired Martin Media and certain affiliated
companies ("Martin"), an outdoor advertising company with over 13,000
billboards and outdoor displays in 12 states serving 23 markets, for
$610,700 in cash less $33,289 which represents the remaining purchase price
for the Kunz Option (as defined), plus working capital of $19,443 subject
to certain adjustments and direct acquisition costs of approximately
$10,000. Additionally, the Company paid $14,264 for properties acquired by
Martin subsequent to the purchase agreement date of June 22, 1998 and prior
to the closing on July 31, 1998. The additional properties acquired from
Martin added approximately 1,500 billboards and outdoor displays in four of
Martin's 23 existing markets. The amounts allocated to net property and
equipment and net intangible assets are based upon a preliminary appraisal
of the assets acquired. Intangible assets consist of goodwill, customer
contract value and non-compete agreements with estimated average lives of
40 years, 5 years and 5 years, respectively.
(b) On October 9, 1998, the Company acquired approximately a 22.4% non-voting
equity interest in Z-Spanish Media Corporation ("Z Spanish Media") for
$25,000 in cash (the "Z Spanish Acquisition"). Z Spanish Media, which is
headquartered in Sacramento, California, is the owner and operator of 22
Hispanic format radio stations in California, Texas, Arizona and Illinois.
(c) On October 23, 1998, the Company acquired Primedia Broadcast Group, Inc.
("Primedia") and certain of its affiliates, which own and operate eight FM
stations in Puerto Rico, for approximately $75,000 in cash less working
capital of $1,280 plus other direct acquisition costs of $1,050 (the
"Primedia Acquisition"). The Company has assumed that the historical
balances of net property and equipment acquired approximate fair value for
the preliminary allocation of the purchase price. Such amounts are based
primarily on information provided by management of Primedia.
(2) On July 20, 1998, the Company completed a consent solicitation (the "12 1/4%
Preferred Stock Consent Solicitation") to modify certain timing restrictions
on the Company's ability to exchange all shares of its 12 1/4% Series A
Senior Cumulative Exchangeable Preferred Stock (the "12 1/4% Preferred
Stock") for its 12 1/4% Subordinated Exchange Debentures due 2008 (the
"12 1/4% Debentures"). Consenting holders of 12 1/4% Preferred Stock
received payments of $0.05 per share of 12 1/4% Preferred Stock. On July 23,
1998, the Company exchanged the shares of 12 1/4% Preferred Stock for
12 1/4% Debentures (the "12 1/4% Exchange"). In connection with the 12 1/4%
Preferred Stock Consent Solicitation and 12 1/4% Exchange, the Company
incurred approximately $170 in transaction costs which were recorded as
deferred debt issuance costs. Reflects the adjustment to record the 12 1/4%
Exchange and the deferred debt issuance costs incurred in connection with
the 12 1/4% Preferred Stock Consent Solicitation and the 12 1/4% Exchange.
(3) On August 19, 1998, the Company completed a cash tender offer (the "12 1/4%
Debentures Tender Offer") for all of the Company's 12 1/4% Debentures.
Reflects the adjustment to record the repurchase of the 12 1/4% Debentures
which includes (i) the principal amount of the 12 1/4% Debentures of
$119,445, (ii) premiums on the repurchase of the 12 1/4% Debentures of
$22,683, (iii) accrued and unpaid interest on the 12 1/4% as of June 30,
1998 of $1,829 and (iv) estimated transaction costs of $570. In connection
with the 12 1/4% Debentures Tender Offer, the Company recorded an
extraordinary charge of $15,224 (net of a tax benefit of $8,199) consisting
of the premiums, estimated transaction costs and the write-off of the
unamortized balance of deferred debt issuance costs.
P-5
<PAGE> 163
(4) Reflects the estimated proceeds of $730,000 received on September 30, 1998
from the issuance of $750,000 of 9% Senior Subordinated Notes due 2008 (the
"9% Notes"), net of deferred debt issuance costs of $20,000. The net
proceeds from the 9% Notes Offering will be used to finance a portion of the
Company's Pending Transactions. Prior to consummation of the Pending
Transactions, the Company used the net proceeds to temporarily reduce
borrowings outstanding under the revolving credit portion of the Senior
Credit Facility.
ADJUSTMENTS TO UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET RELATED TO
THE PENDING TRANSACTIONS
(5) Reflects the Pending Transactions as follows:
<TABLE>
<CAPTION>
PURCHASE PRICE ALLOCATION
------------------------------------------------------------------------------------------------------
PURCHASE/ PROPERTY AND INTANGIBLE DEFERRED
(SALES) CURRENT EQUIPMENT, ASSETS, OTHER CURRENT TAX ACCUMULATED
PENDING TRANSACTIONS PRICE ASSETS NET(A) NET(B) ASSETS LIABILITIES LIABILITIES(C) DEFICIT(D)
-------------------- ---------- ------- ------------ ---------- ------ ----------- -------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Kunz Option(e)........... $ 39,289 $ -- $ 9,822 $ 29,467 $ -- $ -- $ -- $ --
Capstar/SFX
Acquisition(f).......... 494,250 -- 10,415 483,835 -- -- -- --
Cleveland
Acquisitions(g)......... 275,000 -- 1,330 309,497 -- -- (35,827) --
Chicago Disposition(h)... (21,000) -- (2,204) (2,885) -- -- (6,364) (9,547)
Whiteco Acquisition(i)... 962,319 28,760 71,866 866,676 1,458 (6,441) -- --
Phoenix Acquisition(j)... 90,000 -- 1,798 88,202 -- -- -- --
---------- ------- -------- ---------- ------ ------- -------- -------
Total.............. $1,839,858 $28,760 $ 93,027 $1,774,792 $1,458 $(6,441) $(42,191) $(9,547)
========== ======= ======== ========== ====== ======= ======== =======
<CAPTION>
FINANCING
------------------------------------
DECREASE INCREASE
IN NOTES DECREASE (DECREASE)
RECEIVABLE IN IN
FROM OTHER LONG-TERM
PENDING TRANSACTIONS AFFILIATE ASSETS DEBT
-------------------- ---------- -------- ------------
<S> <C> <C> <C>
Kunz Option(e)........... $ -- $6,000 $ 33,289
Capstar/SFX
Acquisition(f).......... 150,000 -- 344,250
Cleveland
Acquisitions(g)......... -- -- 275,000
Chicago Disposition(h)... -- -- (21,000)
Whiteco Acquisition(i)... -- -- 962,319
Phoenix Acquisition(j)... -- -- 90,000
-------- ------ ----------
Total.............. $150,000 $6,000 $1,683,858
======== ====== ==========
</TABLE>
- ---------------
(a) The Company has assumed that historical balances of net property and
equipment to be acquired approximate fair value for the preliminary
allocation of the purchase price. Such amounts are based primarily on
information provided by management of the respective companies to be
acquired in the Pending Transactions.
(b) The Company, on a preliminary basis, has allocated the intangible assets of
the radio acquisitions to broadcast licenses with an estimated average life
of 15 years and has allocated the intangible assets of the outdoor
acquisitions to goodwill and customer contract value with estimated average
lives of 40 years and five years, respectively. The amounts allocated to
net intangible assets are preliminary and are based upon historical
information from prior radio and outdoor acquisitions.
(c) Reflects the tax effect upon consummation of the transaction.
(d) Reflects the gain on sale, net of tax, upon consummation of the
transaction.
(e) On July 31, 1997, Martin paid $6,000 to Kunz & Company for an option to
purchase approximately 1,000 display faces of its Kunz Outdoor Advertising
division for $33,289 in cash plus various other direct acquisition costs
(the "Kunz Option"). The Company expects to exercise the Kunz Option in the
fourth quarter of 1998.
(f) On February 20, 1998, the Company entered into an agreement to acquire from
Capstar KTXQ-FM and KBFB-FM in Dallas/Ft. Worth, KODA-FM, KKRW-FM and
KQUE-FM in Houston, KPLN-FM and KYXY-FM in San Diego and WDRV-FM, WJJJ-FM,
WXDX-FM and WDVE-FM in Pittsburgh (collectively, the "Capstar/SFX
Stations") for an aggregate purchase price of approximately $637,500 in a
series of purchases and exchanges over a period of three years (the
"Capstar/SFX Transaction"). The Capstar/SFX Stations were acquired by
Capstar as part of Capstar's acquisition of SFX on May 29, 1998. On May 29,
1998, the Company completed the Houston Exchange (as defined) and began
operating the remaining ten Capstar/SFX Stations under time brokerage
agreements. The Company also provided a loan to Capstar in the principal
amount of $150,000 (the "Capstar Loan") as part of the Capstar/SFX
Transaction. A portion of the Capstar Loan will be prepaid by Capstar in
connection with the Company's acquisition of, and the proceeds of such
prepayment would be used by the Company as a portion of the purchase price
for, each Capstar/SFX Station. The Company will pay approximately $494,250
for the remaining ten Capstar/SFX Stations. The Company is currently
assessing whether the terms of the Capstar/SFX Transaction will be modified
upon the consummation of the Capstar Merger by Chancellor Media.
P-6
<PAGE> 164
(g) On August 11, 1998, the Company entered into an agreement to acquire four
FM and two AM radio stations in Cleveland for an aggregate purchase price
of approximately $275,000 in cash plus various other direct acquisition
costs (the "Cleveland Acquisitions"). The Cleveland Acquisitions consist of
the purchase by the Company of (i) WDOK-FM and WRMR-AM from Independent
Group Limited Partnership, (ii) WZAK-FM from Zapis Communications, (iii)
Zebra Broadcasting Corporation which owns WZJM-FM and WJMO-AM and (v)
Wincom Broadcasting Corporation which owns WQAL-FM (the "Wincom
Acquisition"). The consummation of each of the Cleveland Acquisitions
(other than the Wincom Acquisition) is contingent upon the consummation of
each of the other Cleveland Acquisitions (other than the Wincom
Acquisition).
(h) On August 20, 1998, the Company entered into an agreement to sell WMVP-AM
in Chicago to ABC, Inc. for $21,000 in cash (the "Chicago Disposition"). On
September 10, 1998, ABC, Inc. began operating WMVP-AM under a time
brokerage agreement.
(i) On August 31, 1998, the Company entered into an agreement to acquire the
assets of the Outdoor Advertising division of Whiteco Industries, Inc., an
outdoor advertising company with over 21,800 billboards and outdoor
displays in 34 states, for $930,000 in cash plus working capital of $22,319
subject to certain adjustments and direct acquisition costs of
approximately $10,000. The DOJ has requested that the Company and Whiteco
submit certain additional information on a voluntary basis in connection
with the DOJ's review of the Whiteco Acquisition. The Company and Whiteco
have responded to this request and are negotiating with the DOJ with
respect to the terms on which the Company may complete the Whiteco
Acquisition.
(j) On September 15, 1998, the Company entered into an agreement to acquire
KKFR-FM and KFYI-AM in Phoenix from The Broadcast Group, Inc. for $90,000
in cash plus various other direct acquisition costs (the "Phoenix
Acquisition").
P-7
<PAGE> 165
ADJUSTMENTS TO UNAUDITED CONDENSED COMBINED STATEMENTS OF OPERATIONS RELATED TO
THE COMPLETED TRANSACTIONS
(6) The detail of the historical financial data of the companies acquired or
disposed of in the Completed Transactions for the year ended December 31,
1997 and for the six months ended June 30, 1998 has been obtained from the
historical financial statements of the respective companies and is
summarized below:
<TABLE>
<CAPTION>
ACQUISITIONS
--------------------------------------------------------------------------------------------
CRBC AS
EVERGREEN ADJUSTED FOR
WUSL-FM VIACOM COMPLETED KDGE-FM KATZ
WDAS-FM/AM WIOQ-FM ACQUISITION CRBC KZPS-FM ACQUISITION
HISTORICAL HISTORICAL HISTORICAL TRANSACTIONS HISTORICAL HISTORICAL
YEAR ENDED DECEMBER 31, 1997 1/1 - 4/30(a) 1/1 - 5/15(b) 1/1 - 7/2(c) 1/1 - 9/5(d) 1/1 - 7/31(e) 1/1 - 10/28(f)
- ---------------------------- ------------- ------------- ------------ ------------ ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues.................... $5,028 $7,088 $38,972 $241,481 $7,616 $144,886
Less: agency commissions.......... (680) (829) (5,470) (30,754) (929) --
------ ------ ------- -------- ------ --------
Net revenues...................... 4,348 6,259 33,502 210,727 6,687 144,886
Operating expenses excluding
depreciation and amortization.... 2,533 3,649 14,936 119,328 5,293 109,341
Depreciation and amortization..... 875 -- 2,279 30,505 280 141
Corporate general and
administrative................... 172 141 682 7,226 -- 8,105
Merger expense.................... -- -- -- 6,124 -- --
Restructuring charge.............. -- -- -- -- -- 15,958
Stock option compensation......... -- -- -- 3,083 -- --
------ ------ ------- -------- ------ --------
Operating income (loss)........... 768 2,469 15,605 44,461 1,114 11,341
Interest expense.................. 19 990 -- 49,812 -- 18,310
Interest income................... (21) -- -- (218) -- (170)
Other (income) expense............ 884 -- -- (584) 12 --
------ ------ ------- -------- ------ --------
Income (loss) before income
taxes............................ (114) 1,479 15,605 (4,549) 1,102 (6,799)
Income tax expense (benefit)...... -- -- 5,892 1,180 -- 1,912
------ ------ ------- -------- ------ --------
Net income (loss)................. (114) 1,479 9,713 (5,729) 1,102 (8,711)
Preferred stock dividends......... -- -- -- 27,321 -- --
------ ------ ------- -------- ------ --------
Income (loss) attributable to
common stock..................... $ (114) $1,479 $ 9,713 $(33,050) $1,102 $ (8,711)
====== ====== ======= ======== ====== ========
Broadcast cash flow............... $1,815 $2,610 $18,566 $ 91,399 $1,394 $ 35,545
====== ====== ======= ======== ====== ========
<CAPTION>
ACQUISITIONS
---------------------------------------------------------------------------------
KBIG-FM
GANNETT KXPK-FM KLDE-FM
HISTORICAL HISTORICAL WBIX-FM KODA-FM WWDC-FM/AM
YEAR ENDED DECEMBER 31, 1997 1/1 - 12/29(g) 1/1 - 8/31(h) 1/1 - 10/10(i) 1/1 - 12/31(j) 1/1 - 12/31(k)
- ---------------------------- -------------- ------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Gross revenues.................... $61,057 $3,460 $33,125 $20,869 $11,416
Less: agency commissions.......... (8,052) (458) (4,636) (2,889) (1,430)
------- ------ ------- ------- -------
Net revenues...................... 53,005 3,002 28,489 17,980 9,986
Operating expenses excluding
depreciation and amortization.... 26,303 2,816 18,277 7,535 5,597
Depreciation and amortization..... 1,736 198 -- 1,848 90
Corporate general and
administrative...................
Merger expense.................... -- -- -- -- --
Restructuring charge.............. -- -- -- -- --
Stock option compensation......... -- -- -- -- --
------- ------ ------- ------- -------
Operating income (loss)........... 24,966 (12) 10,212 8,597 4,299
Interest expense.................. -- -- -- -- 123
Interest income................... -- -- -- -- (36)
Other (income) expense............ (375) (81) -- -- (98)
------- ------ ------- ------- -------
Income (loss) before income
taxes............................ 25,341 69 10,212 8,597 4,310
Income tax expense (benefit)...... 10,127 -- -- -- --
------- ------ ------- ------- -------
Net income (loss)................. 15,214 69 10,212 8,597 4,310
Preferred stock dividends......... -- -- -- -- --
------- ------ ------- ------- -------
Income (loss) attributable to
common stock..................... $15,214 $ 69 $10,212 $ 8,597 $ 4,310
======= ====== ======= ======= =======
Broadcast cash flow............... $26,702 $ 186 $10,212 $10,445 $ 4,389
======= ====== ======= ======= =======
<CAPTION>
ACQUISITIONS
-------------------------------
MARTIN AS
ADJUSTED FOR
COMPLETED PRIMEDIA
MARTIN ACQUISITION
TRANSACTIONS HISTORICAL
YEAR ENDED DECEMBER 31, 1997 1/1 - 12/31(l) 1/1 - 12/31(m)
- ---------------------------- -------------- --------------
<S> <C> <C>
Gross revenues.................... $84,882 $15,732
Less: agency commissions.......... (8,983) (3,482)
------- -------
Net revenues...................... 75,899 12,250
Operating expenses excluding
depreciation and amortization.... 38,836 7,986
Depreciation and amortization..... 25,326 2,916
Corporate general and
administrative................... 1,080 --
Merger expense.................... -- --
Restructuring charge.............. -- --
Stock option compensation......... -- --
------- -------
Operating income (loss)........... 10,657 1,348
Interest expense.................. 17,013 2,102
Interest income................... (293) (25)
Other (income) expense............ 1,767 66
------- -------
Income (loss) before income
taxes............................ (7,830) (795)
Income tax expense (benefit)...... -- (53)
------- -------
Net income (loss)................. (7,830) (742)
Preferred stock dividends......... -- --
------- -------
Income (loss) attributable to
common stock..................... $(7,830) $ (742)
======= =======
Broadcast cash flow............... $37,063 $ 4,264
======= =======
</TABLE>
P-8
<PAGE> 166
<TABLE>
<CAPTION>
DISPOSITIONS
--------------------------------------------------------------------------------------------
WPEG-FM
WBAV-FM/AM SAN
WRFX-FM FRANCISCO
WFNZ-FM WNKS-FM WPNT-FM WEJM-FM/AM WJZW-FM FREQUENCY
HISTORICAL HISTORICAL HISTORICAL HISTORICAL HISTORICAL HISTORICAL
1/1 - 5/15(b) 1/1 - 5/15(n) 5/30 - 6/19(o) 1/1 - 8/26(p) 1/1 - 7/7(q) 1/1 - 7/7(r)
------------- ------------- -------------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues.................... $(7,788) $(1,332) $(567) $(1,279) $(4,137) $(1,370)
Less: agency commissions.......... 1,029 142 93 135 567 178
------- ------- ----- ------- ------- -------
Net revenues...................... (6,759) (1,190) (474) (1,144) (3,570) (1,192)
Operating expenses excluding
depreciation and amortization.... (3,569) (994) (285) (1,276) (2,161) (1,738)
Depreciation and amortization..... -- (212) (279) (305) (315) (84)
Corporate general and
administrative................... -- -- -- -- (70) --
Merger expense.................... -- -- -- -- -- --
Restructuring charge.............. -- -- -- -- -- --
Stock option compensation......... -- -- -- -- -- --
------- ------- ----- ------- ------- -------
Operating income (loss)........... (3,190) 16 90 437 (1,024) 630
Interest expense.................. -- -- -- -- -- --
Interest income................... -- -- -- -- -- --
Other (income) expense............ -- -- -- -- -- --
------- ------- ----- ------- ------- -------
Income (loss) before income
taxes............................ (3,190) 16 90 437 (1,024) 630
Income tax benefit................ -- -- -- -- (260) --
------- ------- ----- ------- ------- -------
Net income (loss)................. (3,190) 16 90 437 (764) 630
Preferred stock dividends......... -- -- -- -- -- --
------- ------- ----- ------- ------- -------
Income (loss) attributable to
common stock..................... $(3,190) $ 16 $ 90 $ 437 $ (764) $ 630
======= ======= ===== ======= ======= =======
Broadcast cash flow............... $(3,190) $ (196) $(189) $ 132 $(1,409) $ 546
======= ======= ===== ======= ======= =======
<CAPTION>
DISPOSITIONS
-------------------------------------------------------------------------------
WBZS-AM
WZHF-AM BONNEVILLE
KDFC-FM KDFC-AM WLUP-FM OPTION WFLN-FM
HISTORICAL HISTORICAL HISTORICAL HISTORICAL HISTORICAL
1/1 - 1/31(s) 1/1 - 8/13(t) 1/1 - 7/14(e) 1/1 - 10/1(i) 1/1 - 4/30(u)
------------- --------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Gross revenues.................... $(278) $(1,091) $(6,928) $(31,429) $(1,298)
Less: agency commissions.......... 26 23 935 3,951 134
----- ------- ------- -------- -------
Net revenues...................... (252) (1,068) (5,993) (27,478) (1,164)
Operating expenses excluding
depreciation and amortization.... (224) (665) (5,642) (14,434) (728)
Depreciation and amortization..... -- (54) (1,443) -- (800)
Corporate general and
administrative................... -- (18) -- -- --
Merger expense.................... -- -- -- -- --
Restructuring charge.............. -- -- -- -- --
Stock option compensation......... -- -- -- -- --
----- ------- ------- -------- -------
Operating income (loss)........... (28) (331) 1,092 (13,044) 364
Interest expense.................. -- -- -- (1) --
Interest income................... -- -- -- 10 --
Other (income) expense............ -- -- -- -- --
----- ------- ------- -------- -------
Income (loss) before income
taxes............................ (28) (331) 1,092 (13,053) 364
Income tax benefit................ -- (98) -- -- --
----- ------- ------- -------- -------
Net income (loss)................. (28) (233) 1,092 (13,053) 364
Preferred stock dividends......... -- -- -- -- --
----- ------- ------- -------- -------
Income (loss) attributable to
common stock..................... $ (28) $ (233) $ 1,092 $(13,053) $ 364
===== ======= ======= ======== =======
Broadcast cash flow............... $ (28) $ (403) $ (351) $(13,044) $ (436)
===== ======= ======= ======== =======
<CAPTION>
DISPOSITIONS
---------------
WBAB-FM
WBLI-FM
WGBB-AM
WHFM-FM COMPLETED
HISTORICAL TRANSACTIONS
1/1 - 12/31(v) HISTORICAL
--------------- ------------
<S> <C> <C>
Gross revenues.................... $(12,794) $605,321
Less: agency commissions.......... 1,459 (59,920)
-------- --------
Net revenues...................... (11,335) 545,401
Operating expenses excluding
depreciation and amortization.... (8,048) 322,666
Depreciation and amortization..... -- 62,702
Corporate general and
administrative................... -- 17,318
Merger expense.................... -- 6,124
Restructuring charge.............. -- 15,958
Stock option compensation......... -- 3,083
-------- --------
Operating income (loss)........... (3,287) 117,550
Interest expense.................. -- 88,368
Interest income................... -- (753)
Other (income) expense............ -- 1,591
-------- --------
Income (loss) before income
taxes............................ (3,287) 28,344
Income tax benefit................ -- 18,700
-------- --------
Net income (loss)................. (3,287) 9,644
Preferred stock dividends......... -- 27,321
-------- --------
Income (loss) attributable to
common stock..................... $ (3,287) $(17,677)
======== ========
Broadcast cash flow............... $ (3,287) $222,735
======== ========
</TABLE>
P-9
<PAGE> 167
<TABLE>
<CAPTION>
ACQUISITIONS DISPOSITIONS
------------------------------------------------------ ------------
MARTIN AS WBAB-FM
ADJUSTED FOR WBLI-FM
COMPLETED PRIMEDIA WGBB-AM
KODA-FM WWDC-FM/AM MARTIN ACQUISITION WHFM-FM COMPLETED
SIX MONTHS ENDED HISTORICAL HISTORICAL TRANSACTIONS HISTORICAL HISTORICAL TRANSACTIONS
JUNE 30, 1998 1/1-5/29(j) 1/1-6/1(k) 1/1-6/30(l) 1/1-6/30(m) 1/1-5/29(v) HISTORICAL
---------------- ----------- ---------- ------------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues............... $ 9,132 $4,273 $46,246 $ 7,523 $(5,063) $62,111
Less: agency commissions..... (1,250) (528) (4,866) (1,925) 514 (8,055)
------- ------ ------- ------- ------- -------
Net revenues................. 7,882 3,745 41,380 5,598 (4,549) 54,056
Operating expenses excluding
depreciation and
amortization............... 2,771 2,158 19,746 3,257 (3,331) 24,601
Depreciation and
amortization............... 841 45 6,928 1,379 -- 9,193
Corporate general and
administrative............. -- -- 563 214 -- 777
------- ------ ------- ------- ------- -------
Operating income (loss)...... 4,270 1,542 14,143 748 (1,218) 19,485
Interest expense............. -- 62 9,252 1,119 -- 10,433
Interest income.............. -- (18) (255) -- -- (273)
Other expense (income)....... -- (49) (140) 28 -- (161)
------- ------ ------- ------- ------- -------
Net income (loss)............ $ 4,270 $1,547 $ 5,286 $ (399) $(1,218) $ 9,486
======= ====== ======= ======= ======= =======
Broadcast cash flow.......... $ 5,111 $1,587 $21,634 $ 2,341 $(1,218) $29,455
======= ====== ======= ======= ======= =======
</TABLE>
- ---------------
(a) On May 1, 1997, the Company acquired, in the Beasley Acquisition,
WDAS-FM/AM in Philadelphia for $103,000 in cash.
(b) On May 15, 1997, the Company exchanged, in the EZ Exchange, 5 of its 6
stations in the Charlotte market (WPEG-FM, WBAV-FM/AM, WRFX-FM and WFNZ-AM)
for WUSL-FM and WIOQ-FM in Philadelphia.
(c) On July 2, 1997, the Company acquired, in the Evergreen Viacom Acquisition,
WLTW-FM and WAXQ-FM in New York and WMZQ-FM, WJZW-FM, WZHF-AM, and WBZS-AM
in Washington, D.C. for approximately $612,388 in cash including various
other direct acquisition costs. The Evergreen Viacom Acquisition was
financed with (i) bank borrowings under the Senior Credit Facility (as
defined) of $552,559; (ii) $53,750 in escrow funds paid by the Company on
February 19, 1997 and (iii) $6,079 financed through working capital. In
June 1997, Chancellor Media issued 5,990,000 shares of $3.00 Convertible
Exchangeable Preferred Stock (the "$3.00 Convertible Preferred Stock") for
net proceeds of approximately $287,800 which were contributed to the
Company by Evergreen and used to repay borrowings under the Senior Credit
Facility and subsequently were reborrowed on July 2, 1997 as part of the
financing of the Evergreen Viacom Acquisition. On July 7, 1997, the Company
sold WJZW-FM in Washington, D.C. to affiliates of Capital Cities/ABC Radio
for $68,000 in cash. The assets of WJZW-FM, as well as the assets of
WZHF-AM and WBZS-AM, which were sold on August 13, 1997, were accounted for
as assets held for sale in connection with the purchase price allocation of
the Viacom Acquisition and no gain or loss was recognized by the Company
upon consummation of the sales (see 6(p) and 6(s)).
(d) On September 5, 1997, pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of February 19, 1997 and amended and restated on
July 31, 1997 (the "Chancellor Merger Agreement"), among Chancellor
Broadcasting Company ("Chancellor"), CRBC, Evergreen Media Corporation
("Evergreen"), Evergreen Mezzanine Holdings Corporation ("EMHC") and
Evergreen Media Corporation of Los Angeles ("EMCLA"), (i) Chancellor was
merged (the "Parent Merger") with and into EMHC, a direct, wholly-owned
subsidiary of Evergreen, with EMHC remaining as the surviving corporation
and (ii) CRBC was merged (the "Subsidiary Merger") with and into EMCLA, a
direct, wholly-owned subsidiary of EMHC, with EMCLA remaining as the
surviving corporation (collectively, the "Chancellor Merger"). Upon
consummation of the Parent Merger, Evergreen was renamed Chancellor Media
Corporation and EMHC was renamed Chancellor Mezzanine Holdings Corporation
("CMHC"). Upon consummation of the Subsidiary Merger, the Company was
renamed Chancellor Media Corporation of Los Angeles ("CMCLA"). Consummation
of the Chancellor Merger added
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<PAGE> 168
52 radio stations (36 FM and 16 AM) to the Company's portfolio of stations,
including 13 stations in markets in which the Company previously operated.
The total purchase price allocated to net assets acquired was approximately
$1,998,383 which included (i) the conversion of each outstanding share of
Chancellor Common Stock into 0.9091 shares of Chancellor Media Common
Stock, resulting in the issuance of 34,617,460 shares of Chancellor Media
Common Stock at $15.50 per share, (ii) the assumption of long-term debt of
CRBC of $949,000 which included $549,000 of borrowings outstanding under
the CRBC senior credit facility, $200,000 of CRBC's 9 3/8% Senior
Subordinated Notes due 2004 and $200,000 of CRBC's 8 3/4% Senior
Subordinated Notes due 2007, (iii) the issuance of 2,117,629 shares of the
Company's 12% Exchangeable Preferred Stock (the "12% Preferred Stock") in
exchange for CRBC's substantially identical securities with a fair value of
$215,570 including accrued and unpaid dividends of $3,807, (iv) the
issuance of 1,000,000 shares of the Company's 12 1/4% Series A Senior
Cumulative Exchangeable Preferred Stock (the "12 1/4% Preferred Stock") in
exchange for CRBC's substantially identical securities with a fair value of
$120,217 including accrued and unpaid dividends of $772, (v) the issuance
of 2,200,000 shares of Chancellor Media's 7% Convertible Preferred Stock
(the "7% Convertible Preferred Stock") in exchange for Chancellor's
substantially identical securities with a fair value of $111,048 including
accrued and unpaid dividends of $1,048, (vi) the assumption of stock
options issued to Chancellor stock option holders with a fair value of
$34,977 and (vii) estimated acquisition costs of $31,000.
CRBC's historical condensed combined statement of operations for the year
ended December 31, 1997 and pro forma adjustments related to the
transactions completed by CRBC prior to the Chancellor Merger (the
"Completed Chancellor Transactions") is summarized below:
<TABLE>
<CAPTION>
ACQUISITIONS DISPOSITIONS
------------------------- ------------- PRO FORMA
CHANCELLOR ADJUSTMENTS CRBC AS
VIACOM FOR THE ADJUSTED FOR
CRBC COLFAX ACQUISITION WDRQ-FM COMPLETED COMPLETED
HISTORICAL HISTORICAL HISTORICAL HISTORICAL CHANCELLOR CHANCELLOR
YEAR ENDED DECEMBER 31, 1997 1/1-9/5 1/1-1/23(i) 1/1-7/2(ii) 1/1-8/11(iii) TRANSACTIONS TRANSACTIONS
---------------------------- ---------- ----------- ----------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues...................... $215,018 $3,183 $29,214 $(2,395) $ (3,539)(iv) $241,481
Less: agency commissions............ (26,575) (384) (4,046) 251 -- (30,754)
-------- ------ ------- ------- -------- --------
Net revenues........................ 188,443 2,799 25,168 (2,144) (3,539) 210,727
Operating expenses excluding
depreciation and amortization..... 110,548 1,872 13,326 (1,986) (4,432)(iv) 119,328
Depreciation and amortization....... 23,919 -- 2,370 (186) 4,484(v) 30,505
(82)(vi)
Corporate general and
administrative.................... 7,102 -- 520 (42) (354)(vii) 7,226
Merger expense...................... 6,124 -- -- -- -- 6,124
Stock option compensation........... 3,083 -- -- -- -- 3,083
-------- ------ ------- ------- -------- --------
Operating income (loss)............. 37,667 927 8,952 70 (3,155) 44,461
Interest expense.................... 37,978 -- 3,178 -- 8,656 (viii 49,812
Interest income..................... (218) -- -- -- -- (218)
Other income........................ (584) -- -- -- -- (584)
-------- ------ ------- ------- -------- --------
Income (loss) before income taxes... 491 927 5,774 70 (11,811) (4,549)
Income tax expense (benefit)........ 2,196 -- 1,558 18 (2,592)(ix) 1,180
-------- ------ ------- ------- -------- --------
Net income (loss)................... (1,705) 927 4,216 52 (9,219) (5,729)
Preferred stock dividends........... 25,817 -- -- -- 1,504(x) 27,321
-------- ------ ------- ------- -------- --------
Income (loss) attributable to common
stock............................. $(27,522) $ 927 $ 4,216 $ 52 $(10,723) $(33,050)
======== ====== ======= ======= ======== ========
Broadcast cash flow................. $ 77,895 $ 927 $11,842 $ (158) $ 893 $ 91,399
======== ====== ======= ======= ======== ========
</TABLE>
- ---------------
(i) On January 23, 1997, CRBC acquired, in the Colfax Acquisition, Colfax
Communications, a radio broadcasting company, with 12 radio stations (8 FM
and 4 AM) located in 4 markets (Minneapolis-
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<PAGE> 169
St. Paul, Phoenix, Washington, D.C. and Milwaukee markets). The total
purchase price, including acquisition costs, allocated to net assets
acquired was approximately $383,700. The Colfax Acquisition was financed
through (i) a private placement by CRBC of $200,000 of 12% Exchangeable
Preferred Stock for net proceeds of $191,817; (ii) a private placement by
Chancellor of $110,000 of 7% Convertible Preferred Stock for net proceeds
of $105,546; (iii) additional bank borrowings under CRBC's previous senior
credit agreement of $65,937 and (iv) $20,400 in escrow funds. On March 31,
1997, CRBC sold WMIL-FM and WOKY-AM in Milwaukee for $41,253 in cash. The
assets of WMIL-FM and WOKY-AM are classified as assets held for sale in
connection with the purchase price allocation of the Colfax Acquisition.
Accordingly, WMIL-FM and WOKY-AM net income of approximately $41 for the
period January 23, 1997 through March 31, 1997 has been excluded from the
Colfax historical condensed statement of operations for the year ended
December 31, 1997.
(ii) On July 2, 1997, CRBC acquired, in the Chancellor Viacom Acquisition,
KIBB-FM and KYSR-FM in Los Angeles, WLIT-FM in Chicago and WDRQ-FM in
Detroit for approximately $500,789 in cash including various other direct
acquisition costs. The Chancellor Viacom Acquisition was financed with (i)
bank borrowings of $273,159 under CRBC's restated senior credit agreement,
dated July 2, 1997 (the "CRBC Restated Credit Agreement"); (ii) borrowings
under an interim loan of Chancellor (the "Chancellor Broadcasting/Viacom
Interim Financing") of $168,300 which were contributed to CRBC by
Chancellor; (iii) escrow funds of $53,750 paid by CRBC on February 19, 1997
and (iv) $5,580 financed through working capital. The assets of WDRQ-FM in
Detroit are classified as assets held for sale in connection with the
purchase price allocation of the Chancellor Viacom Acquisition (see (iii)
below).
(iii)On August 11, 1997, CRBC sold, in the ABC/Detroit Disposition, WDRQ-FM in
Detroit for $37,000 in cash. The assets of WDRQ-FM were classified as
assets held for sale in connection with the purchase price allocation of
the Chancellor Viacom Acquisition (see 6(d)(ii)). Accordingly, WDRQ-FM net
income for the period July 2, 1997 to August 11, 1997 has been excluded
from CRBC's historical condensed statement of operations.
(iv) Reflects the elimination of time brokerage agreement fees received and paid
by CRBC as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997 MARKET PERIOD REVENUE EXPENSE
---------------------------- ------ ------ ------- -------
<S> <C> <C> <C> <C>
WWWW-FM/WDFN-AM(1)...................... Detroit 1/1-1/31 $ (235) $ (16)
WOMX-FM, WXXL-FM, WJHM-FM(2)............ Orlando 1/1-2/13 -- (911)
WEAT-FM/AM, WOLL-FM(2).................. West Palm Beach 1/1-3/28 (593) (304)
WAPE-FM, WFYV-FM(3)..................... Jacksonville 1/1-9/5 (2,711) (490)
WBAB-FM, WBLI-FM, WGBB-AM, WHFM-FM(3)... Long Island 1/1-9/5 -- (2,711)
------- -------
Total adjustment for decrease in
gross revenues and expenses...... $(3,539) $(4,432)
======= =======
</TABLE>
- ---------------
(1)On January 31, 1997, CRBC sold WWWW-FM and WDFN-AM in Detroit to the
Company for $30,000 in cash. Prior to the completion of the sale, CRBC
had entered into a joint sales agreement effective February 14, 1996
and a time brokerage agreement effective April 1, 1996 to sell
substantially all of the broadcast time of WWWW-FM and WDFN-AM to the
Company pending the completion of the sale.
(2)On February 13, 1997, CRBC acquired, in the Omni Acquisition,
substantially all of the assets and assumed certain liabilities of the
OmniAmerica Group including WOMX-FM, WXXL-FM and WJHM-FM in Orlando,
WEAT-FM/AM and WOLL-FM in West Palm Beach, Florida and WAPE-FM AND
WFYV-FM in Jacksonville. The total purchase price, including
acquisition costs, allocated to net assets acquired was approximately
$181,046. Prior to the consummation of the Omni Acquisition, CRBC had
entered into an agreement to operate the stations under a time
brokerage agreement effective July 1, 1996. Additionally, prior to the
consummation of CRBC's exchange of WEAT-FM/AM and WOLL-FM in West Palm
Beach for KSTE-FM in Sacra-
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<PAGE> 170
mento and $33,000 in cash on March 28, 1997, CRBC entered into time
brokerage agreements to sell substantially all of the broadcast time of
WEAT-FM/AM and WOLL-FM in West Palm Beach and WAPE-FM and WFYV-FM in
Jacksonville effective July 1, 1996.
(3)On July 1, 1996, CRBC entered into an agreement to exchange, in the SFX
Exchange, WAPE-FM and WFYV-FM in Jacksonville, Florida, and $11,000 in
cash to SFX for WBAB-FM, WBLI-FM, WGBB-AM, and WHFM-FM in Long Island.
CRBC entered into time brokerage agreements to operate WBAB-FM,
WBLI-FM, WGBB-AM, and WHFM-FM effective July 1, 1996 and entered into
time brokerage agreements to sell substantially all of the broadcast
time of WAPE-FM and WFYV-FM effective July 1, 1996. On November 6,
1997, the DOJ filed suit against the Company seeking to enjoin under
the HSR Act the acquisition of the four Long Island properties under
the SFX Exchange. On March 30, 1998, the Company and SFX entered into a
Consent Decree under which the Company and SFX agreed that the SFX
Exchange would not be consummated and that the time brokerage
agreements under which the Company operated the Long Island properties
would be terminated as soon as possible but no later than August 1,
1998. On May 29, 1998, the Company's time brokerage agreements
regarding the Long Island properties were terminated as part of the
Capstar Transaction (as defined). Furthermore, on May 29, 1998, the
Company exchanged WAPE-FM and WFYV-FM in Jacksonville plus $90,250 in
cash to Capstar in return for KODA-FM in Houston.
(v) Reflects incremental amortization related to the Completed Chancellor
Transactions and is based on the following allocation to intangible assets:
<TABLE>
<CAPTION>
COMPLETED CHANCELLOR INCREMENTAL HISTORICAL ADJUSTMENT
TRANSACTIONS AMORTIZATION INTANGIBLE AMORTIZATION AMORTIZATION FOR NET
YEAR ENDED DECEMBER 31, 1997 PERIOD ASSETS, NET EXPENSE(1) EXPENSE INCREASE
---------------------------- ------------ ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Omni...................................... 1/1-2/13 $171,837 $ 525 $ -- $ 525
Colfax.................................... 1/1-1/23 317,894 508 -- 508
KSTE-FM................................... 1/1-3/28 (32,475) (198) -- (198)
Chancellor Viacom Acquisition............. 1/1-7/2 451,690 5,709 2,060 3,649
-------- ------ ------ ------
Total............................. $908,946 $6,544 $2,060 $4,484
======== ====== ====== ======
</TABLE>
- ---------------
(1) Intangible assets were amortized on a straight-line basis over an
estimated average 40 year life by CRBC. In connection with purchase
accounting for the Chancellor Merger, intangible assets are amortized
over an estimated average life of 15 years in accordance with the
Company's accounting policies and procedures.
Historical depreciation expense of the Completed Chancellor Transactions is
assumed to approximate depreciation expense on a pro forma basis. Actual
depreciation and amortization may differ based upon final purchase price
allocations.
(vi) Reflects the elimination of disposed stations' historical depreciation and
amortization expense of $82 for the year ended December 31, 1997
(WWWW-FM/WDFN-AM for the period of January 1, 1997 to January 31, 1997)
recognized by CRBC during the time brokerage agreement holding period.
(vii)Reflects the elimination of duplicate corporate expenses of $354 for the
year ended December 31, 1997 related to the Completed Chancellor
Transactions.
(viii)
Reflects the adjustment to interest expense in connection with the
consummation of the Completed Chancellor Transactions, the issuance by CRBC
of its 12 1/4% Series A Senior Cumulative Exchangeable Preferred Stock, the
refinancing of CRBC's previous senior credit agreement on January 23, 1997
and
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<PAGE> 171
the offering on June 24, 1997 by CRBC of $200.0 million aggregate principal
amount of its 8 3/4% Senior Notes due 2007 (the "8 3/4% Notes"):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, 1997
-----------------
<S> <C>
Additional bank borrowings related to:
Completed Chancellor Acquisitions......................... $558,892
Completed Chancellor Dispositions......................... (104,253)
New Loan Fees............................................. 6,873
--------
Total additional bank borrowings............................ $461,512
========
Interest expense on additional bank borrowings at 7.5%...... $ 11,376
Less: historical interest expense of the stations acquired
in the Completed Chancellor Transactions.................. (3,178)
--------
Net increase in interest expense............................ 8,198
Reduction in interest expense on bank debt related to the
application of net proceeds of the following at 7.5%:
CRBC 8 3/4% Notes proceeds of $194,083 for the period
January 1, 1997 to June 24, 1997.......................... (7,036)
Reduction in interest expense resulting from the redemption
of CRBC's 12.5% Senior Subordinated Notes of $60,000 on
June 5, 1997.............................................. (3,229)
Interest expense on $70,133 additional bank borrowings at
7.5% related to the redemption of CRBC's 12.5% Senior
Subordinated Notes on June 5, 1997........................ 2,265
Interest expense on $200,000 8 3/4% Notes issued June 24,
1997...................................................... 8,458
--------
Total adjustment for net increase in interest expense....... $ 8,656
========
</TABLE>
(ix) Reflects the income tax benefit related to pro forma adjustments. The
adjustment to income taxes reflects the application of the estimated
effective tax rate on a pro forma basis to income (loss) before income
taxes for historical and pro forma adjustment amounts.
(x) Reflects incremental dividends and accretion of $1,504 on the 12%
Exchangeable Preferred Stock for the period January 1, 1997 to January 23,
1997:
(e) On July 14, 1997, the Company completed the disposition of WLUP-FM in
Chicago to Bonneville for net proceeds of $80,000 which were held by a
qualified intermediary pending the completion of the deferred exchange of
WLUP-FM for KZPS-FM and KDGE-FM in Dallas. On October 7, 1997, the Company
applied the net proceeds from the disposition of WLUP-FM of $80,000 in
cash, plus an additional $3,500 and various other direct acquisition costs,
in a deferred exchange of WLUP-FM for KZPS-FM and KDGE-FM in Dallas. The
exchange was accounted for as a like-kind exchange and no gain or loss was
recognized upon consummation of the transaction. The Company had previously
operated KZPS-FM and KDGE-FM under time brokerage agreements effective
August 1, 1997.
(f) On October 28, 1997, the Company and Chancellor Media acquired Katz Media
Group, Inc. ("KMG"), a full-service media representation firm, in a tender
offer transaction for a total purchase price of approximately $379,101 (the
"Katz Acquisition") which included (i) the conversion of each outstanding
share of KMG Common Stock into the right to receive $11.00 in cash,
resulting in total cash payments of $149,601, (ii) the assumption of
long-term debt of KMG and its subsidiaries of $222,000 which included
$122,000 of borrowings outstanding under the KMG senior credit facility and
$100,000 of the 10 1/2% Notes and (iii) estimated acquisition costs of
$7,500.
(g) On December 29, 1997, the Company acquired, in the Gannett Acquisition, 5
radio stations in 3 major markets from P&S, including WGCI-FM/AM in
Chicago, KHKS-FM in Dallas, and KKBQ-FM/AM in Houston for $340,000 in cash.
(h) On January 30, 1998, the Company acquired, in the Denver Acquisition,
KXPK-FM in Denver from Ever Green Wireless LLC for $26,000 in cash
(including $1,650 paid by Chancellor in escrow). The
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<PAGE> 172
Company had previously been operating KXPK-FM under a time brokerage
agreement since September 1, 1997.
(i) On April 3, 1998, the Company exchanged WTOP-FM in Washington, KZLA-FM in
Los Angeles and WGMS-FM in Washington plus $57,000 in cash for Bonneville's
stations WBIX-FM in New York, KLDE-FM in Houston and KBIG-FM in Los Angeles
(the "Bonneville Option"). The Company had previously paid $3,000 in cash
to Bonneville on August 6, 1997. The Company had previously entered into
time brokerage agreements to operate KLDE-FM and KBIG-FM effective October
1, 1997 and WBIX-FM effective October 10, 1997 and had entered into time
brokerage agreements to sell substantially all of the broadcast time of
WTOP-AM, KZLA-FM and WGMS-FM effective October 1, 1997.
(j) On February 20, 1998, the Company entered into an agreement to acquire from
Capstar Broadcasting Corporation (together with its subsidiaries,
"Capstar") KTXQ-FM and KBFB-FM in Dallas/ Ft. Worth, KODA-FM, KKRW-FM and
KQUE-AM in Houston, KPLN-FM and KYXY-FM in San Diego and WVTY-FM, WJJJ-FM,
WXDX-FM and WDVE-FM in Pittsburgh (collectively, the "Capstar/SFX
Stations") for an aggregate purchase price of approximately $637,500 in a
series of purchases and exchanges over a period of three years (the
"Capstar/SFX Transaction"). The Capstar/ SFX Stations were acquired by
Capstar as part of Capstar's acquisition of SFX on May 29, 1998. On May 29,
1998, as part of the Capstar/SFX Transaction, the Company exchanged WAPE-FM
and WFYV-FM in Jacksonville (valued for purposes of the Capstar/SFX
Transaction at $53,000) plus $90,250 in cash to Capstar in return for
KODA-FM in Houston (the "Houston Exchange"). CRBC entered into a time
brokerage agreement to sell substantially all of the broadcast time of
WAPE-FM and WFYV-FM effective July 1, 1996 (see 6 (d) (iv) (3)). Therefore,
the results of operations of WAPE-FM and WFYV-FM are not included in the
Company's historical condensed statements of operations for the year ended
December 31, 1997 and the six months ended June 30, 1998.
(k) On June 1, 1998, the Company acquired WWDC-FM/AM in Washington, D.C. from
Capitol Broadcasting Company and its affiliates for $74,062 in cash
(including $2,062 for the purchase of the stations' accounts receivable)
plus various other direct acquisition costs, of which $4,000 was previously
paid by the Company as escrow funds (the "Capitol Broadcasting
Acquisition").
(l) On July 31, 1998, the Company acquired Martin Media and certain affiliated
companies ("Martin"), an outdoor advertising company with over 13,000
billboards and outdoor displays in 12 states serving 23 markets, for
$610,700 in cash less $33,289 which represents the remaining purchase price
for the Kunz Option, plus working capital of $19,443 subject to certain
adjustments and direct acquisition costs of approximately $10,000.
Additionally, the Company paid $14,264 for properties acquired by Martin
subsequent to the purchase agreement date of June 22, 1998 and prior to the
closing on July 31, 1998. The additional properties acquired from Martin
added approximately 1,500 billboards and outdoor displays in four of
Martin's 23 existing markets.
Martin's historical condensed combined statements of operations for the
year ended December 31, 1997 and the six months ended June 30, 1998 and pro
forma adjustments related to the significant transactions completed by
Martin prior to the Martin Acquisition (the "Completed Martin
Transactions") are summarized below. The pro forma adjustments for the
Martin Acquisition do not reflect certain acquisitions of assets by Martin
with an aggregate purchase price of approximately $17,000 which, in the
opinion of the Company's management is not material to such pro forma
presentations either individually or in the aggregate.
P-15
<PAGE> 173
<TABLE>
<CAPTION>
MARTIN LAS VEGAS NEWMAN
ACQUISITION KUNZ CONNELL OUTDOOR OUTDOOR POA
HISTORICAL HISTORICAL HISTORICAL HISTORICAL HISTORICAL HISTORICAL
YEAR ENDED DECEMBER 31, 1997 1/1-12/31 1/1-7/31(i) 1/1-12/23(ii) 1/1-12/31(iii) 1/1-12/31(iv) 1/1-12/31(v)
---------------------------- ----------- ------------ ------------- -------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues.................... $70,044 $5,569 $3,459 $1,840 $2,400 $1,570
Less: agency commissions.......... (7,894) -- (413) (181) (180) (315)
------- ------ ------ ------ ------ ------
Net revenues...................... 62,150 5,569 3,046 1,659 2,220 1,255
Operating expenses excluding
depreciation and amortization... 31,196 2,318 1,553 1,353 1,628 788
Depreciation and amortization..... 12,084 281 518 30 279 --
Corporate general and
administrative.................. 2,334 80 91 -- -- --
------- ------ ------ ------ ------ ------
Operating income (loss)........... 16,536 2,890 884 276 313 467
Interest expense.................. 10,507 -- -- -- 243 --
Interest income................... (293) -- -- -- -- --
Other expense..................... 1,737 -- -- -- 30 --
------- ------ ------ ------ ------ ------
Net income (loss)................. $ 4,585 $2,890 $ 884 $ 276 $ 40 $ 467
======= ====== ====== ====== ====== ======
Broadcast cash flow............. $30,954 $3,251 $1,493 $ 306 $ 592 $ 467
======= ====== ====== ====== ====== ======
<CAPTION>
PRO FORMA
ADJUSTMENTS MARTIN AS
FOR THE ADJUSTED
COMPLETED FOR COMPLETED
MARTIN MARTIN
YEAR ENDED DECEMBER 31, 1997 TRANSACTIONS TRANSACTIONS
---------------------------- ------------- -------------
<S> <C> <C>
Gross revenues.................... $ -- $84,882
Less: agency commissions.......... -- (8,983)
--------- -------
Net revenues...................... -- 75,899
Operating expenses excluding
depreciation and amortization... -- 38,836
Depreciation and amortization..... 12,134(vi) 25,326
Corporate general and
administrative.................. (1,425)(vii) 1,080
--------- -------
Operating income (loss)........... (10,709) 10,657
Interest expense.................. 6,263(viii) 17,013
Interest income................... -- (293)
Other expense..................... -- 1,767
--------- -------
Net income (loss)................. $ (16,972) $(7,830)
========= =======
Broadcast cash flow............. $ -- $37,063
========= =======
</TABLE>
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<PAGE> 174
<TABLE>
<CAPTION>
PRO FORMA MARTIN AS
ADJUSTMENTS ADJUSTED
MARTIN FOR THE FOR
ACQUISITION POA COMPLETED COMPLETED
HISTORICAL HISTORICAL MARTIN MARTIN
SIX MONTHS ENDED JUNE 30, 1998 1/1-6/30 1/1-6/30(v) TRANSACTIONS TRANSACTIONS
------------------------------ ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Gross revenues................................ $45,345 $ 901 $ -- $46,246
Less: agency commissions...................... (4,710) (156) -- (4,866)
------- ----- ------- -------
Net revenues.................................. 40,635 745 -- 41,380
Operating expenses excluding depreciation and
amortization................................ 19,246 500 -- 19,746
Depreciation and amortization................. 6,553 88 287(vi) 6,928
Corporate general and administrative.......... 2,273 -- (1,710)(vii) 563
------- ----- ------- -------
Operating income.............................. 12,563 157 1,423 14,143
Interest expense.............................. 8,989 1 262(viii) 9,252
Interest income............................... (255) -- -- (255)
Other expense (income)........................ (153) 13 -- (140)
------- ----- ------- -------
Net income.................................... $ 3,982 $ 143 $ 1,161 $ 5,286
======= ===== ======= =======
Broadcast cash flow........................... $21,389 $ 245 $ -- $21,634
======= ===== ======= =======
</TABLE>
- ---------------
(i) On July 31, 1997, Martin acquired approximately 500 display faces of the
Kunz Outdoor Advertising division from Kunz & Company, an outdoor
advertising company with approximately 1,500 billboards and outdoor
displays in five markets, for $20,500 in cash plus various other direct
acquisition costs (the "Kunz Acquisition").
(ii) On December 23, 1997, Martin acquired Connell Outdoor Advertising Co., an
outdoor advertising company with 88 billboards and outdoor displays in the
Las Vegas market, for $30,000 in cash plus various other direct acquisition
costs (the "Connell Acquisition").
(iii)On January 2, 1998, Martin acquired Las Vegas Outdoor Advertising, Inc., an
outdoor advertising company with 90 billboards and outdoor displays in the
Las Vegas market, for $16,800 in cash plus various other direct acquisition
costs (the "Las Vegas Outdoor Acquisition").
(iv) On January 2, 1998, Martin acquired Newman Outdoor of Texas, Inc., an
outdoor advertising company with over 1,200 billboards and outdoor displays
in three markets, for $12,500 in cash plus various other direct acquisition
costs (the "Newman Acquisition").
(v) On July 9, 1998, Martin acquired POA, an outdoor advertising company with
over 1,240 billboards and outdoor displays in the Pittsburgh market, for
$5,867 in cash plus various other direct acquisition costs (the "POA
Acquisition").
(vi) Reflects incremental amortization related to the Completed Martin
Transactions and is based on the following allocation to intangible assets:
<TABLE>
<CAPTION>
INCREMENTAL HISTORICAL ADJUSTMENT
AMORTIZATION INTANGIBLE AMORTIZATION AMORTIZATION FOR NET
YEAR ENDED DECEMBER 31, 1997 PERIOD ASSETS, NET EXPENSE(1) EXPENSE INCREASE
- ---------------------------- ------------ ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Kunz Acquisition................. 1/1-7/31 $17,260 $ 2,014 $ 42 $ 1,972
Connell Acquisition.............. 1/1-12/23 25,650 5,030 373 4,657
Las Vegas Outdoor Acquisition.... 1/1-12/31 14,408 2,882 -- 2,882
Newman Acquisition............... 1/1-12/31 10,249 2,050 -- 2,050
POA Acquisition.................. 1/1-12/31 2,867 573 -- 573
------- ------- ---- -------
Total.................. $70,434 $12,549 $415 $12,134
======= ======= ==== =======
</TABLE>
P-17
<PAGE> 175
<TABLE>
<CAPTION>
INCREMENTAL HISTORICAL ADJUSTMENT
AMORTIZATION INTANGIBLE AMORTIZATION AMORTIZATION FOR NET
SIX MONTHS ENDED JUNE 30, 1998 PERIOD ASSETS, NET EXPENSE(1) EXPENSE INCREASE
- ------------------------------ ------------ ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
POA Acquisition................... 1/1-6/30 $ 2,867 $287 $ -- $287
======= ==== ==== ====
</TABLE>
- ---------------
(1) Intangible assets were amortized on a straight-line basis over an
estimated average 5 year life by Martin.
Historical depreciation expense of the Completed Martin Transactions is
assumed to approximate depreciation expense on a pro forma basis. Actual
depreciation and amortization may differ based upon final purchase price
allocations.
(vii)On July 31, 1997, Martin paid $6,000 to Kunz & Company for an option to
purchase approximately 1,000 display faces from its Kunz Outdoor
Advertising division for $33,289 in cash plus various other direct
acquisition costs (the "Kunz Option"). Martin began operating these 1,000
display faces under a management agreement effective July 31, 1997.
Pursuant to the management agreement, Martin pays a management fee of $285
per month to Kunz & Company. Reflects the elimination of management fees
paid by Martin to Kunz & Company of $1,425 for the year ended December 31,
1997 and $1,710 for the six months ended June 30, 1998.
(viii)
Reflects the adjustment to interest expense in connection with the
consummation of the Completed Martin Transactions:
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------- ----------
<S> <C> <C>
Additional bank borrowings related to:
Completed Martin Acquisitions............................. $85,667 $35,167
------- -------
Interest expense on additional bank borrowings at 8.5%...... $ 6,506 $ 263
Less: historical interest expense of the companies acquired
in the Completed Martin Transactions...................... (243) (1)
------- -------
Net increase in interest expense............................ $ 6,263 $ 262
======= =======
</TABLE>
(m) On October 23, 1998, the Company acquired Primedia Broadcast Group, Inc.
("Primedia") and certain of its affiliates, which own and operate eight FM
stations in Puerto Rico, for approximately $75,000 in cash less working
capital of $1,280 plus other direct acquisition costs of $1,050 (the
"Primedia Acquisition"). The Company has assumed that historical balances
of net property and equipment acquired approximate fair value for the
preliminary allocation of the purchase price. Such amounts are based
primarily on information provided by management of Primedia.
(n) On May 15, 1997, the Company sold, in the EZ Sale, WNKS-FM in Charlotte for
$10,000 in cash.
(o) On May 30, 1997, the Company acquired, in the Century Acquisition, WPNT-FM
in Chicago for $75,750 in cash (including $2,000 for the purchase of the
station's accounts receivable) of which $5,500 was paid as escrow funds in
July 1996. On June 19, 1997, the Company sold, in the Bonneville/WPNT
Disposition, WPNT-FM in Chicago for $75,000 in cash and recognized a gain
of $500.
(p) On June 3, 1997, the Company sold, in the Crawford Disposition, WEJM-FM in
Chicago for $14,750 in cash. On August 26, 1997, the Company sold, in the
Douglas Chicago Disposition, WEJM-AM in Chicago for $7,500 in cash.
(q) On July 7, 1997, the Company sold, in the ABC/Washington Disposition,
WJZW-FM in Washington for $68,000 in cash. The assets of WJZW-FM were
classified as assets held for sale in connection with the purchase price
allocation of the Evergreen Viacom Acquisition (see 6(c)). Accordingly,
WJZW-FM net income for the period July 2, 1997 to July 7, 1997 has been
excluded from the Company's historical condensed statement of operations.
P-18
<PAGE> 176
(r) On July 7, 1997, the Company sold, in the San Francisco Frequency
Disposition, the San Francisco 107.7 MHz FM dial position and transmission
facility and the call letters from CRBC's KSAN-FM in San Francisco for
$44,000 in cash.
(s) On January 31, 1997, the Company acquired, in the KKSF/KDFC Acquisition,
KKSF-FM and KDFC-FM/AM in San Francisco for $115,000 in cash. The Company
had previously been operating KKSF-FM and KDFC-FM/AM under a time brokerage
agreement since November 1, 1996. On July 21, 1997, the Company sold, in
the Bonneville/KDFC Disposition, KDFC-FM in San Francisco for $50,000 in
cash. The assets of KDFC-FM were classified as assets held for sale in
connection with the purchase price allocation of the acquisition of
KKSF-FM/KDFC-FM/AM. Accordingly, KDFC-FM net income of approximately $791
for the period February 1, 1997 through July 21, 1997 has been excluded
from the Company's historical condensed statement of operations. Therefore,
the KDFC-FM condensed statement of operations includes the results of
operations for January 1, 1997 through January 31, 1997 (the time brokerage
agreement holding period in 1997) for the year ended December 31, 1997.
(t) On August 13, 1997, the Company sold, in the Douglas AM Dispositions,
WBZS-AM and WZHF-AM in Washington (acquired as part of the Evergreen Viacom
Acquisition -- see 6(c)) and KDFC-AM in San Francisco for $18,000 in the
form of a promissory note. The assets of WBZS-AM and WZHF-AM were
classified as assets held for sale in connection with the purchase price
allocation of the Evergreen Viacom Acquisition (see 6(c)). Accordingly,
WBZS-AM and WZHF-AM net income for the period July 2, 1997 to August 13,
1997 has been excluded from the Company's historical condensed statement of
operations.
(u) On April 13, 1998, the Company and Secret entered into a settlement
agreement regarding WFLN-FM in Philadelphia. Previously in August 1996, the
Company and Secret had entered into an agreement under which the Company
would acquire WFLN-FM from Secret for $37,750 in cash. In April 1997, the
Company entered into an agreement to sell WFLN-FM to Greater Media for
$41,800 in cash. On July 16, 1997, Secret purported to terminate the sale
of WFLN-FM to the Company. The Company subsequently brought suit against
Secret to enforce its rights to acquire WFLN-FM. Pursuant to a court
settlement entered in August 1997 and the settlement agreement between the
Company and Secret entered on April 13, 1998, (i) Secret sold WFLN-FM
directly to Greater Media for $37,750, (ii) Greater Media deposited $4,050
(the difference between the Company's proposed acquisition price for
WFLN-FM from Secret and the Company's proposed sale price for WFLN-FM to
Greater Media) with the court and (iii) the Company received $3,500 of such
amount deposited by Greater Media with the court, plus interest earned
during the period which the court held such amounts (the "WFLN
Settlement"), and Secret received the balance of such amounts.
(v) CRBC began operating WBAB-FM, WBLI-FM, WGBB-AM and WHFM-FM in Long Island
under a time brokerage agreement effective July 1, 1996 (see 6(d)(iv)(3)).
On May 29, 1998, as part of the Capstar/SFX Transaction, the Company's time
brokerage agreements regarding the Long Island properties were terminated.
The results of operations of WBAB-FM, WBLI-FM, WGBB-AM and WHFM-FM in Long
Island are included in CRBC's historical condensed statement of operations
for January 1, 1997 through September 5, 1997 and in the Company's
historical condensed statement of operations for September 6, 1997 through
December 31, 1997. Additionally, the Company's historical condensed
statement of operations for the six months ended June 30, 1998 includes the
results of operations of WBAB-FM, WBLI-FM, WGBB-AM and WHFM-FM in Long
Island for January 1, 1998 through May 29, 1998.
(7) Reflects the elimination of intercompany transactions between the Company
and Katz for the year ended December 31, 1997.
P-19
<PAGE> 177
(8) Reflects the elimination of time brokerage agreement fees received by the
Company as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997 MARKET PERIOD REVENUE
- ---------------------------- ------ ------ -------
<S> <C> <C> <C>
KZLA-FM...................................... Los Angeles 10/1-12/31 $(567)
WTOP-AM...................................... Washington, D.C. 10/1-12/31 (276)
-----
$(843)
=====
</TABLE>
(9) Reflects incremental amortization related to the Completed Transactions and
is based on the following allocation to intangible assets:
<TABLE>
<CAPTION>
INCREMENTAL HISTORICAL ADJUSTMENT
AMORTIZATION INTANGIBLE AMORTIZATION AMORTIZATION FOR NET
YEAR ENDED DECEMBER 31, 1997 PERIOD(i) ASSETS, NET EXPENSE(i) EXPENSE INCREASE
---------------------------- ------------ ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
WWWW-FM/WDFN-AM.................. 1/1-1/31 $ 26,590 $ 148 $ -- $ 148
KKSF-FM(ii)...................... 1/1-1/31 58,698 326 -- 326
WJLB-FM/ WMXD-FM................. 1/1-3/31 165,559 2,759 -- 2,759
WWRC-AM.......................... 1/1-4/2 16,808 286 -- 286
WDAS-FM/AM....................... 1/1-4/30 98,185 2,182 820 1,362
Evergreen Viacom
Acquisition(iii)............... 1/1-7/2 515,654 17,379 793 16,586
Chancellor Merger(iv)............ 1/1-9/5 2,178,137 98,823 23,638 75,185
Chicago/Dallas Exchange.......... 1/1-10/7 (613) (31) -- (31)
Katz Acquisition(v).............. 1/1-10/28 354,058 10,267 7,616 2,651
Gannett Acquisition.............. 1/1-12/29 334,892 22,264 1,228 21,036
Denver Acquisition............... 1/1-12/31 24,589 1,639 268 1,371
Bonneville Option................ 1/1-12/31 62,504 4,167 -- 4,167
KODA-FM.......................... 1/1-12/31 93,294 6,220 1,441 4,779
WWDC-FM/AM....................... 1/1-12/31 64,338 4,289 -- 4,289
Martin Acquisition(vi)........... 1/1-12/31 523,283 29,550 12,650 16,900
Primedia Acquisition............. 1/1-12/31 70,361 4,691 2,248 2,443
---------- -------- ------- --------
Total................... $4,586,337 $204,959 $50,702 $154,257
========== ======== ======= ========
</TABLE>
<TABLE>
<CAPTION>
INCREMENTAL HISTORICAL ADJUSTMENT
AMORTIZATION INTANGIBLE AMORTIZATION AMORTIZATION FOR NET
SIX MONTHS ENDED JUNE 30, 1998 PERIOD(i) ASSETS, NET EXPENSE(i) EXPENSE INCREASE
------------------------------ ------------ ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Denver Acquisition............... 1/1-1/30 24,589 137 -- 137
Bonneville Option................ 1/1-4/3 62,504 1,076 -- 1,076
KODA-FM.......................... 1/1-5/29 93,294 2,574 656 1,918
WWDC-FM/AM....................... 1/1-6/1 64,338 1,799 -- 1,799
Martin Acquisition(vi)........... 1/1-6/30 523,283 14,775 4,209 10,566
Primedia Acquisition............. 1/1-6/30 70,361 2,345 1,034 1,311
---------- -------- ------- --------
Total................... $ 838,369 $ 22,706 $ 5,899 $ 16,807
========== ======== ======= ========
</TABLE>
(i) Intangible assets are amortized on a straight-line basis over an estimated
average 15 year life (except for the Katz Acquisition and the Martin
Acquisition -- see (v) and (vi) below). The incremental amortization
period represents the period of the year that the station was not owned by
the Company.
(ii) Intangible assets for KKSF-FM excludes (1) $50,000 of the purchase price
allocated to KDFC-FM which has been classified as assets held for sale,
(2) $1,500 to be reimbursed by the buyers of KDFC-FM for costs incurred in
connection with relocating KKSF and (3) $4,802 of the purchase price
allocated to KDFC-AM which was sold, in the Douglas AM Dispositions, on
August 13, 1997.
(iii) Intangible assets for the Evergreen Viacom Acquisition of $515,654
excludes (1) $67,231 of the purchase price allocated to WJZW-FM which was
sold in the ABC/Washington Disposition on July 7, 1997 and (2) $12,148 of
the purchase price allocated to WZHF-AM and WBZS-AM which were sold in the
Douglas AM Dispositions on August 13, 1997.
P-20
<PAGE> 178
(iv) Intangible assets for the Chancellor Merger of $2,178,137 includes $293,548
resulting from the recognition of deferred tax liabilities.
(v) Intangible assets for the Katz Acquisition of $354,058 consist of goodwill
of $249,058 and representation contract value of $105,000 with estimated
average lives of 40 years and 17 years, respectively.
(vi) Intangible assets for the Martin Acquisition of $523,283 consist of
goodwill, customer contact value and non-compete agreements with estimated
average lives of 40 years, 5 years and 5 years, respectively.
Historical depreciation expense of the Completed Transactions is assumed to
approximate depreciation expense on a pro forma basis. Actual depreciation
and amortization may differ based upon final purchase price allocations.
(10) Reflects the elimination of duplicate corporate expenses of $1,842 for the
year ended December 31, 1997 related to the Completed Transactions.
(11) Reflects the elimination of merger expenses of $6,124 for the year ended
December 31, 1997 incurred by CRBC in connection with the Chancellor
Merger.
(12) Reflects the adjustment to interest expense in connection with the
consummation of the Completed Transactions, the amendment and restatement
of the Company's senior credit agreement on April 25, 1997 (the "Senior
Credit Facility"), Chancellor Media's $3.00 Convertible Preferred Stock
Offering completed on June 16, 1997, the offering by the Company of the
8 1/8% Notes on December 22, 1997, Chancellor Media's 1998 Equity Offering
completed on March 13, 1998, the repurchase of the Company's 12% Exchange
Debentures on June 10, 1998, the repurchase of the Company's 12 1/4%
Exchange Debentures on August 19, 1998 and the Company's offering of the 9%
Notes on September 30, 1998:
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Additional bank borrowings related to:
Completed Acquisitions................................... $2,467,608 $940,549
Completed Dispositions................................... (349,250) --
Chancellor Merger(a)..................................... 164,000 --
Katz Acquisition(b)...................................... 157,101 --
New Loan Fees............................................ 10,473 --
---------- --------
Total additional bank borrowings........................... $2,449,932 $940,549
========== ========
Interest expense at 7.0%................................... $ 126,022 $ 30,255
Less: historical interest expense related to completed
station acquisitions and dispositions.................... (20,247) (10,433)
---------- --------
Net increase in interest expense........................... 105,775 19,822
Reduction in interest expense on bank debt related to the
application of net proceeds of the following at 7.0%:
$3.00 Convertible Preferred Stock Offering proceeds
contributed to the Company of $287,808 for the period
January 1, 1997 to June 16, 1997...................... (9,290) --
8 1/8% Notes proceeds of $485,000 for the period January
1, 1997 to December 22, 1997 to December 22, 1997..... (33,196) --
Chancellor Media's 1998 Equity Offering proceeds
contributed to the Company and used to reduce bank
borrowings by $673,000 for the year ended December 31,
1997.................................................. (47,110) (9,553)
9% Notes proceeds of $730,000 for the year ended December
31, 1997 and the six months ended June 30, 1998....... (51,100) (25,550)
Interest expense on the Company's $500,000 8 1/8% Notes
issued December 22, 1997................................. 39,722 --
</TABLE>
P-21
<PAGE> 179
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Interest expense on borrowings to finance the repurchase of
the Company's 12% Exchange Debentures on June 10, 1998... 18,200 8,089
Interest expense on borrowings to finance the repurchase of
the Company's 12 1/4% Exchange Debentures on August 19,
1998..................................................... 9,949 4,974
Interest expense on the Company's $750,000 9% Notes issued
September 30, 1998....................................... 67,500 33,750
Reduction in interest expense related to the application of
the 7.0% interest rate to the Company's bank debt prior
to the refinancing of the Senior Credit Facility, to
CRBC's bank debt prior to consummation of the Chancellor
Merger and to KMG's bank debt prior to consummation of
the Katz Acquisition..................................... (19,610) (7,500)
---------- --------
Total adjustment for net decrease in interest expense...... $ 80,840 $ 24,032
========== ========
</TABLE>
- ---------------
(a) The Company incurred additional bank borrowings of $133,000 to
distribute to CMHC to retire outstanding borrowings under the
Chancellor Broadcasting/Viacom Interim Financing and $31,000 to finance
estimated acquisition costs related to the Chancellor Merger.
(b) The Company incurred additional bank borrowings of $149,601 to finance
the payment of $11.00 in cash for each outstanding share of Katz Common
Stock and $7,500 to finance estimated acquisition costs related to the
Katz Acquisition.
(13) On October 9, 1998, the Company acquired approximately a 22.4% non-voting
equity interest in Z Spanish Media Corporation ("Z Spanish Media") for
$25,000 in cash (the "Z Spanish Acquisition"). Z Spanish Media, which is
headquartered in Sacramento, California, is the owner and operator of 22
Hispanic format radio stations in California, Texas, Arizona and Illinois.
The Z Spanish Acquisition is accounted for on the equity method.
Accordingly, approximately 22.4% of the net loss of Z Spanish of $3,952 and
$1,911 for the year ended December 31, 1997 and for the six months ended
June 30, 1998, respectively, is recorded as Other Expense.
(14) Reflects the income tax benefit related to pro forma adjustments. The
adjustment to income taxes reflects the application of the estimated
effective tax rate on a pro forma basis to income (loss) before income
taxes for historical and pro forma adjustment amounts.
(15) Reflects the elimination of preferred stock dividends and accretion on the
12% Preferred Stock and the 12 1/4% Preferred Stock of $40,222 and $16,702
for the year ended December 31, 1997 and the six months ended June 30,
1998, respectively, in connection with the exchange of the 12% Preferred
Stock and 12 1/4% Preferred Stock into 12% Debentures and 12 1/4%
Debentures, respectively, and the subsequent repurchase of all the 12%
Debentures and 12 1/4% Debentures.
P-22
<PAGE> 180
ADJUSTMENTS TO UNAUDITED CONDENSED COMBINED STATEMENTS OF OPERATIONS RELATED TO
THE PENDING TRANSACTIONS
(16) The detail of the historical financial data of the companies to be acquired
in the Pending Transactions for the year ended December 31, 1997 and the
six months ended June 30, 1998 has been obtained from the historical
financial statements of the respective companies and is summarized below:
<TABLE>
<CAPTION>
ACQUISITIONS DISPOSITIONS
----------------------------------------------------------------- --------------
WHITECO
CAPSTAR/SFX CLEVELAND ACQUISITION PHOENIX CHICAGO
TRANSACTION ACQUISITIONS HISTORICAL ACQUISITION DISPOSITION PENDING
HISTORICAL HISTORICAL 1/1 - HISTORICAL HISTORICAL TRANSACTIONS
YEAR ENDED DECEMBER 31, 1997 1/1 - 12/31(a) 1/1 - 12/31(b) 12/31(c) 1/1 - 12/31(d) 1/1 - 12/31(e) HISTORICAL
---------------------------- -------------- -------------- -------------- -------------- -------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues................ $60,701 $33,728 $126,801 $13,796 $(15,231) $219,795
Less: agency commissions...... (7,657) (4,102) (8,703) (1,656) 1,990 (20,128)
------- ------- -------- ------- -------- --------
Net revenues.................. 53,044 29,626 118,098 12,140 (13,241) 199,667
Operating expenses excluding
depreciation and
amortization................ 37,857 16,433 63,984 7,132 (16,248) 109,158
Depreciation and
amortization................ 7,564 673 11,525 184 (592) 19,354
Corporate general and
administrative.............. -- 481 6,074 -- -- 6,555
Profit participation fee...... -- -- 2,322 -- -- 2,322
------- ------- -------- ------- -------- --------
Operating income.............. 7,623 12,039 34,193 4,824 3,599 62,278
Interest expense.............. 10 714 4 -- -- 728
Interest income............... -- (513) -- -- -- (513)
Other (income) expense........ -- (1,357) (1,833) -- -- (3,190)
------- ------- -------- ------- -------- --------
Income (loss) before income
taxes....................... 7,613 13,195 36,022 4,824 3,599 65,253
Income tax expense............ -- 75 -- 1,750 -- 1,825
------- ------- -------- ------- -------- --------
Net income (loss)............. $ 7,613 $13,120 $ 36,022 $ 3,074 $ 3,599 $ 63,428
======= ======= ======== ======= ======== ========
Broadcast cash flow........... $15,187 $13,193 $ 54,114 $ 5,008 $ 3,007 $ 90,509
======= ======= ======== ======= ======== ========
</TABLE>
<TABLE>
<CAPTION>
ACQUISITIONS DISPOSITIONS
------------------------------------------------------------- -------------
WHITECO
CAPSTAR/SFX CLEVELAND ACQUISITION PHOENIX CHICAGO
TRANSACTION ACQUISITIONS HISTORICAL ACQUISITION DISPOSITION PENDING
HISTORICAL HISTORICAL 1/1 - HISTORICAL HISTORICAL TRANSACTIONS
SIX MONTHS ENDED JUNE 30, 1998 1/1 - 5/29(a) 1/1 - 6/30(b) 6/30(c) 1/1 - 6/30(d) 1/1 - 6/30(e) HISTORICAL
------------------------------ ------------- ------------- ------------- ------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Gross revenues..................... $23,382 $17,230 $67,533 $6,573 $(9,018) $105,700
Less: agency commissions........... (2,866) (2,210) (4,609) (689) 1,032 (9,342)
------- ------- ------- ------ ------- --------
Net revenues....................... 20,516 15,020 62,924 5,884 (7,986) 96,358
Operating expenses excluding
depreciation and amortization.... 14,269 8,575 33,056 3,471 (9,418) 49,953
Depreciation and amortization...... 3,101 135 5,709 97 (260) 8,782
Corporate general and
administrative................... -- -- 3,755 -- -- 3,755
Profit participation fee........... -- -- 1,161 -- -- 1,161
------- ------- ------- ------ ------- --------
Operating income (loss)............ 3,146 6,310 19,243 2,316 1,692 32,707
Interest expense................... 4 131 -- 194 -- 329
Interest income.................... 1 (46) -- -- -- (45)
Other (income) expense............. -- 542 (504) -- -- 38
------- ------- ------- ------ ------- --------
Income (loss) before income
taxes............................ 3,141 5,683 19,747 2,122 1,692 32,385
Income tax expense................. -- -- -- 764 -- 764
------- ------- ------- ------ ------- --------
Net income (loss).................. $ 3,141 $ 5,683 $19,747 $1,358 $ 1,692 $ 31,621
======= ======= ======= ====== ======= ========
Broadcast cash flow................ $ 6,247 $ 6,445 $29,868 $2,413 $ 1,432 $ 46,405
======= ======= ======= ====== ======= ========
</TABLE>
- ---------------
(a) On February 20, 1998, the Company entered into an agreement to acquire from
Capstar KTXQ-FM and KBFB-FM in Dallas/Ft. Worth, KODA-FM, KKRW-FM and
KQUE-FM in Houston, KPLN-FM and KYXY-FM in San Diego and WDRV-FM, WJJJ-FM,
WXDX-FM and WDVE-FM in Pittsburgh (collectively, the "Capstar/SFX
Stations") for an aggregate purchase price of approxi-
P-23
<PAGE> 181
mately $637,500 in a series of purchases and exchanges over a period of
three years (the "Capstar/SFX Transaction"). The Capstar/SFX Stations were
acquired by Capstar as part of Capstar's acquisition of SFX on May 29,
1998. On May 29, 1998, the Company completed the Houston Exchange (defined
above) and began operating the remaining ten Capstar/SFX Stations under
time brokerage agreements. The Company also provided a loan to Capstar in
the principal amount of $150,000 (the "Capstar Loan") as part of the
Capstar/SFX Transaction. A portion of the Capstar Loan will be prepaid in
connection with the Company's acquisition of, and the proceeds of such
prepayment would be used by the Company as a portion of the purchase price
for, each Capstar/SFX Station. The Company is currently assessing whether
the terms of the Capstar/SFX Transaction will be modified upon the
consummation of the Capstar Merger by Chancellor Media. The Company will
pay approximately $494,250 for the remaining ten Capstar/SFX Stations.
(b) On August 11, 1998, the Company entered into an agreement to acquire four
FM and two AM radio stations in Cleveland for an aggregate purchase price
of approximately $275,000 in cash plus various other direct acquisition
costs (the "Cleveland Acquisitions"). The Cleveland Acquisitions consist of
the purchase by the Company of (i) WDOK-FM and WRMR-AM from Independent
Group Limited Partnership, (ii) WZAK-FM from Zapis Communications, (iii)
Zebra Broadcasting Corporation which owns WZJM-FM and WJMO-AM and (v)
Wincom Broadcasting Corporation which owns WQAL-FM (the "Wincom
Acquisition"). The consummation of each of the Cleveland Acquisitions
(other than the Wincom Acquisition) is contingent upon the consummation of
each of the other Cleveland Acquisitions (other than the Wincom
Acquisition).
(c) On August 31, 1998, the Company entered into an agreement to acquire the
assets of the Outdoor Advertising division of Whiteco Industries, Inc., an
outdoor advertising company with over 21,800 billboards and outdoor
displays in 34 states, for $930,000 in cash plus working capital of $22,319
subject to certain adjustments and direct acquisition costs of
approximately $10,000. The DOJ has requested that the Company and Whiteco
submit certain additional information on a voluntary basis in connection
with the DOJ's review of the Whiteco Acquisition. The Company and Whiteco
have responded to this request and are currently negotiating with the DOJ
with respect to the terms on which the Company may complete the Whiteco
Acquisition. Although there can be no assurance, the Company expects that
the Whiteco Acquisition will be consummated in the fourth quarter of 1998.
(d) On September 15, 1998, the Company entered into an agreement to acquire
KKFR-FM and KFYI-AM in Phoenix from The Broadcast Group, Inc. for $90,000
in cash plus various other direct acquisition costs (the "Phoenix
Acquisition").
(e) On August 20, 1998, the Company entered into an agreement to sell WMVP-AM
in Chicago to ABC, Inc. for $21,000 in cash (the "Chicago Disposition"). On
September 10, 1998, ABC, Inc. began operating WMVP-AM under a time
brokerage agreement.
(17) Reflects incremental amortization related to the assets acquired in the
Pending Transactions and is based on the allocation of the total
consideration as follows:
<TABLE>
<CAPTION>
INCREMENTAL INTANGIBLE HISTORICAL ADJUSTMENT
AMORTIZATION ASSETS, AMORTIZATION AMORTIZATION FOR NET
YEAR ENDED DECEMBER 31, 1997 PERIOD(I) NET EXPENSE(I) EXPENSE INCREASE
- ---------------------------- ------------ ---------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Kunz Option(ii)........................ 1/1-12/31 $ 29,467 $ 1,696 $ -- $ 1,696
Capstar/SFX Transaction................ 1/1-12/31 483,835 32,256 5,874 26,382
Cleveland Acquisitions................. 1/1-12/31 309,497 20,633 292 20,341
Chicago Disposition.................... 1/1-12/31 (2,885) (192) (339) 147
Whiteco Acquisition(ii)................ 1/1-12/31 866,676 49,877 6,328 43,549
Phoenix Acquisition.................... 1/1-12/31 88,202 5,880 103 5,777
---------- -------- ------- --------
Total................................ $1,774,792 $110,150 $12,258 $ 97,892
========== ======== ======= ========
</TABLE>
P-24
<PAGE> 182
<TABLE>
<CAPTION>
INCREMENTAL INTANGIBLE HISTORICAL ADJUSTMENT
AMORTIZATION ASSETS, AMORTIZATION AMORTIZATION FOR NET
SIX MONTHS ENDED JUNE 30, 1998 PERIOD(i) NET EXPENSE(i) EXPENSE INCREASE
- ------------------------------ ------------ ---------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Kunz Option(ii)................... 1/1-6/30 $ 29,467 $ 848 $ -- $ 848
Capstar/SFX Transaction........... 1/1-6/30 483,835 16,128 2,418 13,710
Cleveland Acquisitions............ 1/1-6/30 309,497 10,317 17 10,300
Chicago Disposition............... 1/1-6/30 (2,885) (96) (131) 35
Whiteco Acquisition(ii)........... 1/1-6/30 866,676 24,938 3,140 21,798
Phoenix Acquisition............... 1/1-6/30 88,202 2,940 52 2,888
---------- ------- ------ -------
Total............................. $1,774,792 $55,075 $5,496 $49,579
========== ======= ====== =======
</TABLE>
- ---------------
(i)Intangible assets are amortized on a straight-line basis over an
estimated average 15 year life (except for the Whiteco Acquisition and
the Kunz Option -- see (ii) below). The incremental amortization period
represents the period of the year that the company was not owned by the
Company.
(ii)
Intangible assets for the Whiteco Acquisition of $866,676 and the Kunz
Option of $29,467 consist of goodwill and customer contract value with
estimated average lives of 40 years and 5 years, respectively.
Historical depreciation expense of the Pending Transactions is assumed to
approximate depreciation expense on a pro forma basis. Actual depreciation
and amortization may differ based upon final purchase price allocations.
(18) Reflects the elimination of the profit participation fee paid by Whiteco to
Metro Management Associates of $2,322 and $1,161 for the year ended
December 31, 1997 and the six months ended June 30, 1998, respectively.
(19) Reflects the adjustment to interest expense in connection with the
consummation of the Pending Transactions:
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Additional bank borrowings related to:
Pending Acquisitions.................................... $1,704,858 $1,704,858
Pending Dispositions.................................... (21,000) (21,000)
---------- ----------
Total additional bank borrowings........................ $1,683,858 $1,683,858
========== ==========
Interest expense at 7.0%................................ $ 117,870 $ 58,935
Less: historical interest expense related to completed
station acquisitions and dispositions................... (728) (329)
---------- ----------
Total adjustment for net increase in interest expense..... $ 117,142 $ 58,606
========== ==========
</TABLE>
(20) Reflects the income tax benefit related to pro forma adjustments. The
adjustment to income taxes reflects the application of the estimated
effective tax rate on a pro forma basis to income (loss) before income
taxes for historical and pro forma adjustment amounts.
P-25
<PAGE> 183
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
Report of Independent Accountants......................... F-3
Independent Auditors' Report.............................. F-4
Consolidated Balance Sheets as of December 31, 1996 and
1997................................................... F-5
Consolidated Statements of Operations for the years ended
December 31, 1995, 1996 and 1997....................... F-6
Consolidated Statements of Stockholder's Equity for the
years ended December 31, 1995, 1996 and 1997........... F-7
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1996 and 1997....................... F-8
Notes to Consolidated Financial Statements................ F-9
Report of Independent Accountants......................... F-31
Schedule II -- Valuation and Qualifying Accounts.......... F-32
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
Unaudited Consolidated Balance Sheets as of December 31,
1997 and June 30, 1998................................. F-33
Unaudited Consolidated Statements of Operations for the
three and six months ended June 30, 1997 and 1998...... F-34
Unaudited Consolidated Statements of Cash Flows for the
six months ended June 30, 1997 and 1998................ F-35
Notes to Unaudited Consolidated Financial Statements...... F-36
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
Report of Independent Accountants......................... F-46
Consolidated Balance Sheets as of December 31, 1995 and
1996................................................... F-47
Consolidated Statements of Operations for the years ended
December 31, 1994, 1995 and 1996....................... F-48
Consolidated Statements of Changes in Common Stockholder's
Equity for the years ended December 31, 1994, 1995 and
1996................................................... F-49
Consolidated Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996....................... F-50
Notes to Consolidated Financial Statements................ F-51
Unaudited Consolidated Balance Sheets as of December 31,
1996 and June 30, 1997................................. F-67
Unaudited Consolidated Statements of Operations for the
three and six months ended June 30, 1996 and 1997...... F-68
Unaudited Consolidated Statements of Changes in
Stockholder's Equity for the six months ended June 30,
1997................................................... F-69
Unaudited Consolidated Statements of Cash Flows for the
six months ended June 30, 1996 and 1997................ F-70
Notes to Unaudited Consolidated Financial Statements...... F-71
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
Independent Auditors' Report.............................. F-77
Combined Balance Sheets as of December 31, 1995 and 1996
and June 30, 1997 (unaudited).......................... F-78
Combined Statements of Earnings for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-79
Combined Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-80
Notes to Combined Financial Statements.................... F-81
WMZQ INC. AND VIACOM BROADCASTING EAST INC.:
Independent Auditors' Report.............................. F-86
Combined Balance Sheets as of December 31, 1995 and 1996
and June 30, 1997 (unaudited).......................... F-87
</TABLE>
F-1
<PAGE> 184
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Combined Statements of Earnings for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-88
Combined Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-89
Notes to Combined Financial Statements.................... F-90
WDAS-AM/FM (STATION OWNED AND OPERATED BY BEASLEY FM
ACQUISITION CORP.):
Independent Auditors' Report.............................. F-95
Balance Sheets as of December 31, 1996 and March 31, 1997
(unaudited)............................................ F-96
Statements of Earnings and Station Equity for the year
ended December 31, 1996 and the three months ended
March 31, 1996 and 1997 (unaudited).................... F-97
Statements of Cash Flows for the year ended December 31,
1996 and the three months ended March 31, 1996 and 1997
(unaudited)............................................ F-98
Notes to Financial Statements............................. F-99
KYSR INC. AND KIBB INC.:
Independent Auditors' Report.............................. F-103
Combined Balance Sheets as of December 31, 1995 and 1996
and June 30, 1997 (unaudited).......................... F-104
Combined Statements of Operations for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-105
Combined Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996 and the six months
ended June 30, 1996 and 1997 (unaudited)............... F-106
Notes to Combined Financial Statements.................... F-107
WLIT INC.:
Independent Auditors' Report.............................. F-112
Balance Sheets as of December 31, 1995 and 1996 and June
30, 1997 (unaudited)................................... F-113
Statements of Earnings for the years ended December 31,
1994, 1995 and 1996 and the six months ended June 30,
1996 and 1997 (unaudited).............................. F-114
Statements of Cash Flows for the years ended December 31,
1994, 1995 and 1996 and the six months ended June 30,
1996 and 1997 (unaudited).............................. F-115
Notes to Financial Statements............................. F-116
COLFAX COMMUNICATIONS, INC. RADIO GROUP
Report of Independent Public Accountants.................. F-121
Combined Balance Sheets as of December 31, 1996, 1995, and
1994................................................... F-122
Combined Statements of Income for the years ended December
31, 1996, 1995, and 1994............................... F-123
Combined Statements of Changes in Partners' Equity for the
years ended December 31, 1996, 1995, and 1994.......... F-124
Combined Statements of Cash Flows for the years ended
December 31, 1996, 1995, and 1994...................... F-125
Notes to Combined Financial Statements.................... F-126
OUTDOOR ADVERTISING DIVISION OF WHITECO INDUSTRIES, INC.
Independent Auditors' Report.............................. F-132
Balance Sheets as of December 31, 1996 and 1997 and June
30, 1998 (unaudited)................................... F-133
Statements of Income for the years ended December 31,
1995, 1996, 1997 and the six months ended June 30, 1997
and 1998 (unaudited)................................... F-134
Statements of Cash Flows for the years ended December 31,
1995, 1996, 1997 and the six months ended June 30, 1997
and 1998 (unaudited)................................... F-135
Notes to Financial Statements............................. F-136
</TABLE>
F-2
<PAGE> 185
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We have audited the accompanying consolidated balance sheet of Chancellor
Media Corporation of Los Angeles and subsidiaries (collectively, the "Company")
as of December 31, 1997, and the related consolidated statements of operations,
stockholder's equity and cash flows for the year ended December 31, 1997. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
the Company as of December 31, 1997, and the consolidated results of its
operations and its cash flows for the year ended December 31, 1997 in conformity
with generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
February 10, 1998, except for notes 2(b)
paragraphs 1 and 3-5 as to which the date
is February 20, 1998 and 9(a) as to
which the date is March 13, 1998
F-3
<PAGE> 186
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We have audited the accompanying consolidated balance sheet of Chancellor
Media Corporation of Los Angeles (formerly Evergreen Media Corporation of Los
Angeles) and subsidiaries as of December 31, 1996, and the related consolidated
statements of operations, stockholder's equity and cash flows for the years
ended December 31, 1995 and 1996. In connection with our audits of the
consolidated financial statements, we have also audited the financial statement
schedule as of and for the years ended December 31, 1995 and 1996. These
consolidated financial statements and financial statement schedule are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Chancellor
Media Corporation of Los Angeles and subsidiaries as of December 31, 1996, and
the results of their operations and their cash flows for the years ended
December 31, 1995 and 1996 in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic consolidated financial statements taken as a
whole, presents fairly, in all material respects, the information set forth
therein.
KPMG PEAT MARWICK LLP
Dallas, Texas
January 31, 1997
F-4
<PAGE> 187
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1997
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 3,060 $ 16,584
Accounts receivable, less allowance for doubtful accounts
of $2,292 in 1996 and $12,651 in 1997.................. 85,159 239,869
Other current assets (note 3)............................. 6,352 27,208
---------- ----------
Total current assets.............................. 94,571 283,661
Property and equipment, net (note 4)........................ 48,193 159,797
Intangible assets, net (note 5)............................. 853,643 4,404,443
Other assets, net (note 3).................................. 24,552 113,576
---------- ----------
$1,020,959 $4,961,477
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable and accrued expenses (note 6)............ $ 26,650 $ 171,017
Current portion of long-term debt (note 7)................ 26,500 --
---------- ----------
Total current liabilities......................... 53,150 171,017
Long-term debt, excluding current portion (note 7).......... 331,500 2,573,000
Deferred tax liabilities (note 11).......................... 86,098 361,640
Other liabilities........................................... 800 44,405
---------- ----------
Total liabilities................................. 471,548 3,150,062
---------- ----------
Redeemable preferred stock (note 8):
Redeemable senior cumulative exchangeable preferred stock
of subsidiary, par value $.01 per share; 1,000,000
shares authorized, issued and outstanding in 1997;
liquidation preference of $121,274..................... -- 119,445
Redeemable cumulative exchangeable preferred stock of
subsidiary, par value $.01 per share; 3,600,000 shares
authorized and 2,117,629 shares issued and outstanding
in 1997; liquidation preference of $223,519............ -- 211,763
Stockholder's equity (note 9):
Common stock, $.01 par value. Authorized 1,040 shares;
issued and outstanding 1,000 shares in 1996 and 1,040
shares in 1997......................................... 1 1
Paid-in capital........................................... 662,922 1,637,628
Accumulated deficit....................................... (113,512) (157,422)
---------- ----------
Total stockholder's equity........................ 549,411 1,480,207
---------- ----------
Commitments and contingencies (notes 2, 7 and 12)...........
$1,020,959 $4,961,477
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 188
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
Gross revenues.............................................. $186,365 $337,405 $663,804
Less agency commissions................................... 23,434 43,555 81,726
-------- -------- --------
Net revenues........................................... 162,931 293,850 582,078
-------- -------- --------
Operating expenses:
Station operating expenses excluding depreciation and
amortization........................................... 97,674 174,344 316,248
Depreciation and amortization............................. 47,005 93,749 185,982
Corporate general and administrative...................... 4,475 7,797 21,442
-------- -------- --------
Operating expenses..................................... 149,154 275,890 523,672
-------- -------- --------
Operating income....................................... 13,777 17,960 58,406
-------- -------- --------
Nonoperating (income) expenses:
Interest expense.......................................... 19,199 37,527 85,017
Interest income........................................... (55) (477) (1,922)
Gain on disposition of assets (note 2).................... -- -- (18,380)
Other expense, net........................................ 291 -- 383
-------- -------- --------
Nonoperating expenses, net............................. (19,435) (37,050) (65,098)
-------- -------- --------
Loss before income taxes and extraordinary item........ (5,658) (19,090) (6,692)
Income tax expense (benefit) (note 11)...................... 192 (2,896) 7,802
-------- -------- --------
Loss before extraordinary item......................... (5,850) (16,194) (14,494)
Extraordinary item -- loss on extinguishment of debt, net of
income tax benefit (note 7)............................... -- -- 4,350
-------- -------- --------
Net loss............................................... (5,850) (16,194) (18,844)
Preferred stock dividends (note 8).......................... -- -- 12,901
-------- -------- --------
Net loss attributable to common stock.................. $ (5,850) $(16,194) $(31,745)
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 189
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK TOTAL
--------------- PAID-IN ACCUMULATED STOCKHOLDER'S
AMOUNT SHARES CAPITAL DEFICIT EQUITY
------ ------ ---------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Balances at December 31, 1994................. $1 1,000 $ 195,170 $ (82,818) $ 112,353
Net capital contributed by Parent............. -- -- 202,904 -- 202,904
Dividend to Parent............................ -- -- -- (4,830) (4,830)
Net loss...................................... -- -- -- (5,850) (5,850)
-- ----- ---------- --------- ----------
Balances at December 31, 1995................. 1 1,000 398,074 (93,498) 304,577
Net capital contributed by Parent............. -- -- 264,848 -- 264,848
Dividend to Parent............................ -- -- -- (3,820) (3,820)
Net loss...................................... -- -- -- (16,194) (16,194)
-- ----- ---------- --------- ----------
Balances at December 31, 1996................. 1 1,000 662,922 (113,512) 549,411
Net capital contributed by Parent............. -- -- 974,706 -- 974,706
Dividend to Parent............................ -- -- -- (12,165) (12,165)
Issuance of common stock in connection with
the Katz Acquisition........................ -- 40 -- -- --
Net loss...................................... -- -- -- (31,745) (31,745)
-- ----- ---------- --------- ----------
Balances at December 31, 1997................. $1 1,040 $1,637,628 $(157,422) $1,480,207
== ===== ========== ========= ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE> 190
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (5,850) $ (16,194) $ (18,844)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation........................................... 5,508 7,707 14,918
Amortization of goodwill, intangible assets and other
assets............................................... 41,497 86,042 171,064
Provision for doubtful accounts........................ 904 2,179 5,174
Deferred income tax benefit............................ (479) (4,353) (3,829)
Gain on disposition of assets.......................... -- -- (18,380)
Loss on extinguishment of debt, net of income tax
benefit.............................................. -- -- 4,350
Changes in certain assets and liabilities, net of
effects of acquisitions:
Accounts receivable.................................. (6,628) (28,146) (29,977)
Other current assets................................. 724 (2,804) 733
Accounts payable and accrued expenses................ 3,711 3,991 20,004
Other assets......................................... (184) (354) (4,283)
Other liabilities.................................... 490 (587) (1,416)
--------- --------- -----------
Net cash provided by operating activities......... 39,693 47,481 139,514
--------- --------- -----------
Cash flows from investing activities:
Acquisitions, net of cash acquired........................ (188,004) (457,764) (1,631,505)
Escrow deposits on pending acquisitions................... -- (17,000) (4,655)
Proceeds from sale of assets.............................. -- 32,000 269,250
Payments made on purchases of representation contracts.... -- -- (31,456)
Payments received on sales of station representation
contracts.............................................. -- -- 9,296
Capital expenditures...................................... (2,642) (6,543) (11,666)
Other..................................................... (1,466) (12,631) (22,273)
--------- --------- -----------
Net cash used by investing activities............. (192,112) (461,938) (1,423,009)
--------- --------- -----------
Cash flows from financing activities:
Proceeds from issuance of long-term debt.................. 186,000 447,750 2,945,250
Principal payments on long-term debt...................... (159,000) (290,750) (1,901,250)
Cash contributed by parent................................ 132,766 264,938 293,158
Dividends to parent....................................... (4,830) (3,820) (14,572)
Payments for debt issuance costs.......................... (303) (3,941) (25,567)
Redemption of preferred stock............................. -- (90) --
--------- --------- -----------
Net cash provided by financing activities......... 154,633 414,087 1,297,019
--------- --------- -----------
Increase (decrease) in cash and cash equivalents............ 2,214 (370) 13,524
Cash and cash equivalents at beginning of year.............. 1,216 3,430 3,060
--------- --------- -----------
Cash and cash equivalents at end of year.................... $ 3,430 $ 3,060 $ 16,584
========= ========= ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-8
<PAGE> 191
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Description of Business
Chancellor Media Corporation of Los Angeles (formerly known as Evergreen
Media Corporation of Los Angeles) ("CMCLA"), a wholly-owned subsidiary of
Chancellor Media Corporation ("Chancellor Media"), and its subsidiaries
(collectively, the "Company") own and operate commercial radio stations in
various geographical regions across the United States. The Company's station
portfolio as of December 31, 1997 included 96 stations (68 FM and 28 AM)
comprising a total of 11 station clusters of four or five FM stations
("superduopolies") in seven of the 12 largest radio markets -- Los Angeles, New
York, Chicago, San Francisco, Philadelphia, Washington, D.C. and Detroit -- and
in four other large markets -- Denver, Minneapolis/St. Paul, Phoenix and
Orlando. The Company also owns Katz Media Group, Inc. ("KMG" and, together with
its operating subsidiaries, "Katz"), a full-service media representation firm
that sells national spot advertising time for its clients in the television,
radio and cable industries.
(b) Principles of Consolidation
The consolidated financial statements include the accounts of CMCLA and its
subsidiaries all of which are wholly owned. Significant intercompany balances
and transactions have been eliminated in consolidation.
(c) Property and Equipment
Property and equipment are stated at cost. Depreciation of property and
equipment is computed using the straight-line method over the estimated useful
lives of the assets. Repair and maintenance costs are charged to expense when
incurred.
(d) Intangible Assets
Intangible assets consist primarily of broadcast licenses, goodwill,
representation contracts and other identifiable intangible assets. Intangible
assets resulting from acquisitions are valued based upon estimated fair values.
The Company amortizes such intangible assets using the straight-line method over
estimated useful lives ranging from 1 to 40 years. The Company continually
evaluates the propriety of the carrying amount of goodwill and other intangible
assets as well as the amortization period to determine whether current events or
circumstances warrant adjustments to the carrying value and/or revised estimates
of useful lives. This evaluation consists of the projection of undiscounted
operating income before depreciation, amortization, nonrecurring charges and
interest over the remaining amortization periods of the related intangible
assets. The projections are based on a historical trend line of actual results
since the acquisitions of the respective stations adjusted for expected changes
in operating results. To the extent such projections indicate that undiscounted
operating income is not expected to be adequate to recover the carrying amounts
of the related intangible assets, such carrying amounts are written down by
charges to expense. At this time, the Company believes that no significant
impairment of goodwill and other intangible assets has occurred and that no
reduction of the estimated useful lives is warranted.
(e) Debt Issuance Costs
The costs related to the issuance of debt are capitalized and amortized to
expense over the lives of the related debt. During the years ended December 31,
1995, 1996 and 1997, the Company recognized amortization of debt issuance costs
of $631, $1,113 and $1,337, respectively, which amounts are included in
amortization expense in the accompanying consolidated statements of operations.
F-9
<PAGE> 192
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(f) Barter Transactions
The Company trades commercial air time for goods and services used
principally for promotional, sales and other business activities. An asset and
liability is recorded at the fair market value of the goods or services
received. Barter revenue is recorded and the liability relieved when commercials
are broadcast and barter expense is recorded and the asset relieved when goods
or services are received or used. Barter amounts are not significant to the
Company's consolidated financial statements.
(g) Income Taxes
Deferred income taxes are recognized for the tax consequences in future
years of differences between the tax bases of assets and liabilities and their
financial reporting amounts at each year end based on enacted tax laws and
statutory tax rates applicable to the periods in which the differences are
expected to affect taxable earnings. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount more likely than not to be
realized. Income tax expense is the total of tax payable for the period and the
change during the period in deferred tax assets and liabilities which impacted
operations.
(h) Revenue Recognition
Revenue is derived primarily from the sale of radio advertising time to
local and national advertisers and from commissions on sales of advertising time
for radio and television stations and cable television systems under
representation contracts by the Company's media representation firm, Katz.
Revenue is recognized as advertisements are broadcast.
Fees received or paid pursuant to various time brokerage agreements are
recognized as gross revenues or amortized to expense, respectively, over the
term of the agreement using the straight-line method.
(i) Representation Contracts
Representation contracts typically may be terminated by either party upon
written notice one year after receipt of such notice. In accordance with
industry practice, in lieu of termination, an arrangement is typically made for
the purchase of such contracts by the successor representation firm. Under such
arrangements, the purchase price paid by the successor representation firm is
based upon the historic commission income projected over the remaining contract
period, including the evergreen notice period, plus 2 months.
Income resulting from the disposition of representation contracts is
recognized as other revenue over the remaining life of the contracts sold. Other
revenue on the disposition of representation contracts included in gross revenue
in the accompanying consolidated statement of operations was $153 for the year
ended December 31, 1997. Costs of obtaining representation contracts are
deferred and amortized over the related period of benefit. Amortization of costs
of obtaining representation contracts included in depreciation and amortization
in the accompanying consolidated statement of operations was $380 for the year
ended December 31, 1997.
(j) Statements of Cash Flows
For purposes of the statements of cash flows, the Company considers
temporary cash investments purchased with original maturities of three months or
less to be cash equivalents.
The Company paid approximately $19,134, $37,042 and $84,610 for interest in
1995, 1996 and 1997, respectively. The Company paid approximately $733 and
$11,079 for income taxes in 1996 and 1997, respectively.
F-10
<PAGE> 193
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(k) Derivative Financial Instruments
The Company has only limited involvement with derivative financial
instruments and does not use them for trading purposes. They are used to manage
well-defined interest rate risks related to interest on the Company's
outstanding debt.
As interest rates change under interest rate swap and cap agreements, the
differential to be paid or received is recognized as an adjustment to interest
expense. The Company is not exposed to credit loss as its interest rate swap
agreements are with the participating banks under the Company's senior credit
facility.
(l) Omission of Per Share Information
Net loss per share is not presented as such information is not meaningful.
All of the issued and outstanding shares of the Company's common stock have been
owned, directly or indirectly, by Chancellor Media during the three-year period
ended December 31, 1997.
(m) Disclosure of Certain Significant Risks and Uncertainties
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
In the opinion of management, credit risk with respect to trade receivables
is limited due to the large number of diversified customers and the geographic
diversification of the Company's customer base. The Company performs ongoing
credit evaluations of its customers and believes that adequate allowances for
any uncollectible trade receivables are maintained. At December 31, 1995, 1996
and 1997, no receivable from any customer exceeded 5% of stockholders' equity
and no customer accounted for more than 10% of net revenues in 1995, 1996 or
1997.
(n) Stock Option Plan
The Company does not have any stock compensation plans under which it
grants stock awards to employees. Chancellor Media grants stock options to the
Company's officers and other key employees on behalf of the Company.
Prior to January 1, 1996, Chancellor Media accounted for its stock option
plans in accordance with the provisions of Accounting Principles Board ("APB")
Opinion No. 25, Accounting for Stock Issued to Employees, and related
interpretations. As such, compensation expense would be recorded on the date of
grant only if the current market price of the underlying stock exceeded the
exercise price. SFAS No. 123, Accounting for Stock-Based Compensation, permits
entities to recognize as expense over the vesting period the fair value of all
stock-based awards on the date of grant or continue to apply the provisions of
APB Opinion No. 25 and provide pro forma net income and pro forma earnings per
share disclosures for employee stock option grants made in 1995 and future years
as if the fair-value-based method defined in SFAS No. 123 had been applied.
Chancellor Media has elected to continue to apply the provisions of APB Opinion
No. 25 and provide the pro forma disclosures of SFAS No. 123.
(o) Recently Issued Accounting Principles
The Company adopted the provisions of SFAS No. 129, Disclosures of
Information about Capital Structure, effective for the year ended December 31,
1997. This Statement consolidates existing pronouncements on required
disclosures about a company's capital structure including a brief discussion of
rights and
F-11
<PAGE> 194
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
privileges for securities outstanding. The adoption of this Statement had no
material effect on the Company's consolidated financial statements.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
Reporting Comprehensive Income. This Statement requires that all items that are
required to be recognized under accounting standards as components of
comprehensive income be reported in a financial statement that is displayed with
the same prominence as other financial statements. SFAS No. 130 is effective for
financial statement periods beginning after December 15, 1997. Management does
not anticipate that this Statement will have a significant effect on the
Company's consolidated financial statements.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
Disclosures about Segments of an Enterprise and Related Information. This
Statement establishes standards for reporting information about operating
segments in annual financial statements and requires reporting of selected
information about operating segments in interim financial reports issued to
stockholders. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. SFAS No. 131 is
effective for fiscal years beginning after December 15, 1997. Management does
not anticipate that this Statement will have a significant effect on the
Company's consolidated financial statements.
(p) Reclassifications
Certain reclassifications have been made to prior years' consolidated
financial statements to conform to the current year presentation.
(2) ACQUISITIONS AND DISPOSITIONS
(a) Completed Transactions
In May 1995, the Company acquired Broadcasting Partners, Inc. ("BPI"), a
publicly traded radio broadcasting company with seven FM and four AM radio
stations, eight of which are in the nation's ten largest radio markets (the "BPI
Acquisition"). The BPI Acquisition was effected through the merger of a
wholly-owned subsidiary of the Company with and into BPI, with BPI surviving the
merger as a wholly-owned subsidiary of the Company. The BPI Acquisition included
the conversion of each outstanding share of BPI common stock into the right to
receive $12.00 in cash and .69 shares of Chancellor Media's Common Stock,
resulting in total cash payments of $94,813 and the issuance of 11,222,018
shares of Chancellor Media's Common Stock valued at $6.25 per share. In
addition, the Company retired existing BPI debt of $81,926 and incurred various
other direct acquisition costs. The total purchase price, including closing
costs, allocated to net assets acquired was approximately $258,634.
On January 17, 1996, the Company acquired Pyramid Communications, Inc.
("Pyramid"), a radio broadcasting company with nine FM and three AM radio
stations in five radio markets (Chicago, Philadelphia, Boston, Charlotte and
Buffalo) (the "Pyramid Acquisition"). The Pyramid Acquisition was effected
through the merger of a wholly-owned subsidiary of the Company with and into
Pyramid, with Pyramid surviving the merger as a wholly-owned subsidiary of the
Company. The total purchase price, including closing costs, allocated to net
assets acquired was approximately $316,343 in cash.
On May 3, 1996, the Company acquired WKLB-FM in Boston from Fairbanks
Communications for $34,000 in cash plus various other direct acquisition costs.
On November 26, 1996, the Company exchanged WKLB-FM in Boston (now known as
WROR-FM) for WGAY-FM in Washington, D.C. The exchange was accounted for as a
like-kind exchange and no gain or loss was recognized upon consummation of the
transaction. The Company had previously been operating WGAY-FM under a time
brokerage agreement and selling substantially all of the broadcast time of
WKLB-FM under a time brokerage agreement, in each case since June 17, 1996,
pending completion of the exchange.
F-12
<PAGE> 195
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On July 19, 1996, the Company sold WHTT-FM and WHTT-AM in Buffalo to
Mercury Radio for $19,500 in cash, and on August 1, 1996, the Company sold
WSJZ-FM in Buffalo to American Radio Systems for $12,500 in cash (collectively,
the "Buffalo Stations"). The assets of the Buffalo Stations were classified as
assets held for sale in the Pyramid Acquisition and no gain or loss was
recognized by the Company upon consummation of the sales. The combined net
income of the Buffalo stations of approximately $733 has been excluded from the
consolidated statement of operations for the year ended December 31, 1996. The
excess of the proceeds over the carrying amounts at the dates of sale
approximated $2,561 (including interest costs during the holding period of
approximately $1,169) and has been accounted for as an adjustment to the
original purchase price of the Pyramid Acquisition. The Company had previously
entered into time brokerage agreements (effective April 15, 1996 for WSJZ-FM and
April 25, 1996 for WHTT-FM and WHTT-AM) to sell substantially all of the
broadcast time of these stations pending completion of the sales.
On August 14, 1996, the Company acquired KYLD-FM in San Francisco from
Crescent Communications for $44,000 in cash plus various other direct
acquisition costs. The Company had previously been operating KYLD-FM under a
time brokerage agreement since May 1, 1996.
On October 18, 1996, the Company acquired WEDR-FM in Miami from affiliates
of the Rivers Group for $65,000 in cash plus various other direct acquisition
costs.
On January 31, 1997, the Company acquired WWWW-FM and WDFN-AM in Detroit
from affiliates of Chancellor Radio Broadcasting Company ("CRBC") for $30,000 in
cash plus various other direct acquisition costs. The Company had previously
provided certain sales and promotional functions to WWWW-FM and WDFN-AM under a
joint sales agreement since February 14, 1996 and subsequently operated the
stations under a time brokerage agreement since April 1, 1996.
On January 31, 1997, the Company acquired KKSF-FM and KDFC-FM/AM in San
Francisco from affiliates of the Brown Organization for $115,000 in cash plus
various other direct acquisition costs. The Company had previously been
operating KKSF-FM and KDFC-FM/AM under a time brokerage agreement since November
1, 1996. On July 21, 1997, the Company sold KDFC-FM to Bonneville International
Corporation ("Bonneville") for $50,000 in cash. The assets of KDFC-FM were
classified as assets held for sale in connection with the purchase price
allocation of the acquisition of KKSF-FM and KDFC-FM/AM and no gain or loss was
recognized by the Company upon consummation of the sale. The combined net income
of KDFC-FM of approximately $934 has been excluded from the consolidated
statement of operations for the year ended December 31, 1997. The excess of the
proceeds over the carrying amount at the date of sale approximated $739
(including interest costs during the holding period of approximately $1,750) and
has been accounted for as an adjustment to the original purchase price of the
acquisition of KKSF-FM and KDFC-FM/AM.
On April 1, 1997, the Company acquired WJLB-FM and WMXD-FM in Detroit from
Secret Communications, L.P. ("Secret") for $168,000 in cash plus various other
direct acquisition costs. The Company had previously been operating WJLB-FM and
WMXD-FM under time brokerage agreements since September 1, 1996.
On April 3, 1997, the Company exchanged WQRS-FM in Detroit (which the
Company acquired on April 3, 1997 from Secret for $32,000 in cash plus various
other direct acquisition costs), to affiliates of Greater Media Radio, Inc. in
return for WWRC-AM in Washington, D.C. and $9,500 in cash. The exchange was
accounted for as a like-kind exchange and no gain or loss was recognized upon
consummation of the transaction. The net purchase price to the Company of
WWRC-AM was therefore $22,500. The Company had previously been operating WWRC-AM
under a time brokerage agreement since June 17, 1996.
On May 1, 1997, the Company acquired WDAS-FM/AM in Philadelphia from
affiliates of Beasley FM Acquisition Corporation for $103,000 in cash plus
various other direct acquisition costs.
F-13
<PAGE> 196
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On May 15, 1997, the Company exchanged five of its six stations in
Charlotte, North Carolina (WPEG-FM, WBAV-FM/AM, WRFX-FM and WFNZ-AM) for two FM
stations in Philadelphia (WIOQ-FM and WUSL-FM) owned by EZ Communications, Inc.
("EZ") in Philadelphia (the "Charlotte Exchange"), and also sold the Company's
sixth radio station in Charlotte, WNKS-FM, to EZ for $10,000 in cash and
recognized a gain of $3,536. The Charlotte Exchange was accounted for as a
like-kind exchange and no gain or loss was recognized upon consummation of the
transaction.
On May 30, 1997, the Company acquired WPNT-FM in Chicago from affiliates of
Century Broadcasting Company for $75,740 in cash (including $1,990 for the
purchase of the station's accounts receivable) plus various other direct
acquisition costs. On June 19, 1997, the Company sold WPNT-FM in Chicago to
Bonneville for $75,000 in cash and recognized a gain of $529.
On June 3, 1997, the Company sold WEJM-FM in Chicago to affiliates of
Crawford Broadcasting for $14,750 in cash and recognized a gain of $9,258.
On July 2, 1997, the Company acquired WLTW-FM and WAXQ-FM in New York and
WMZQ-FM, WJZW-FM, WZHF-AM and WBZS-AM in Washington, D.C. from Viacom
International, Inc. ("Viacom") for approximately $612,388 in cash including
various other direct acquisition costs (the "Viacom Acquisition"). The Viacom
Acquisition was financed with (i) bank borrowings under the Senior Credit
Facility (as defined) of $552,559; (ii) $53,750 in escrow funds paid by the
Company on February 19, 1997 and (iii) $6,079 financed through working capital.
In June 1997, Chancellor Media issued 5,990,000 shares of $3.00 Convertible
Exchangeable Preferred Stock for net proceeds of $287,808 which were contributed
to the Company by Chancellor Media and used to repay borrowings under the Senior
Credit Facility and subsequently were reborrowed on July 2, 1997 as part of the
financing of the Viacom Acquisition. On July 7, 1997, the Company sold WJZW-FM
in Washington, D.C. to affiliates of Capital Cities/ABC Radio for $68,000 in
cash. The assets of WJZW-FM, as well as the assets of WZHF-AM and WBZS-AM, which
were sold on August 13, 1997, were accounted for as assets held for sale in
connection with the purchase price allocation of the Viacom Acquisition and no
gain or loss was recognized by the Company upon consummation of the sales. The
combined net income of WJZW-FM, WZHF-AM and WBZS-AM of approximately $153 has
been excluded from the consolidated statement of operations for the year ended
December 31, 1997. The excess of the carrying amounts over the proceeds at the
dates of sale approximated $894 and has been accounted for as an adjustment to
the original purchase price of the Viacom Acquisition.
On July 7, 1997, the Company sold the Federal Communications Commission
("FCC") authorizations and certain transmission equipment previously used in the
operation of KYLD-FM in San Francisco to Susquehanna Radio Corporation
("Susquehanna") for $44,000 in cash and recognized a gain of $1,726.
Simultaneously therewith, CRBC sold the call letters "KSAN-FM" (which CRBC
previously used in San Francisco) to Susquehanna. On July 7, 1997, the Company
and CRBC entered into a time brokerage agreement to enable the Company to
operate KYLD-FM on the frequency previously assigned to KSAN-FM, and on July 7,
1997, CRBC changed the call letters of KSAN-FM to KYLD-FM. Upon the consummation
of the Chancellor Merger (as defined herein), the Company changed the format of
the new KYLD-FM to the format previously operated on the old KYLD-FM.
On July 14, 1997, the Company completed the disposition of WLUP-FM in
Chicago to Bonneville for net proceeds of $80,000 which were held by a qualified
intermediary pending the completion of the deferred exchange of WLUP-FM for
KZPS-FM and KDGE-FM in Dallas. On October 7, 1997, the Company applied the net
proceeds from the disposition of WLUP-FM of $80,000 in cash, plus an additional
$3,500 and various other direct acquisition costs, in a deferred exchange of
WLUP-FM for KZPS-FM and KDGE-FM in Dallas. The exchange was accounted for as a
like-kind exchange and no gain or loss was recognized upon consummation of the
transaction. The Company had previously operated KZPS-FM and KDGE-FM under time
brokerage agreements effective August 1, 1997.
F-14
<PAGE> 197
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On July 21, 1997, the Company entered into a time brokerage agreement with
CRBC whereby the Company began managing certain limited functions of CRBC's
stations KBGG-FM, KNEW-AM and KABL-FM in San Francisco pending the consummation
of the Chancellor Merger (as defined herein), which occurred on September 5,
1997.
On August 13, 1997, the Company sold WBZS-AM and WZHF-AM in Washington,
D.C. (acquired as part of the Viacom Acquisition) and KDFC-AM in San Francisco
to affiliates of Douglas Broadcasting ("Douglas") for $18,000 in the form of a
promissory note. The promissory note bears interest at 7 3/4%, with a balloon
principal payment due four years after closing. At closing, Douglas was required
to post a $1,000 letter of credit for the benefit of the Company that will
remain outstanding until all amounts due under the promissory note are paid.
On August 27, 1997, the Company sold WEJM-AM in Chicago to Douglas for
$7,500 in cash and recognized a gain of $3,331.
On September 5, 1997, pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of February 19, 1997 and amended and restated on July
31, 1997 (the "Chancellor Merger Agreement"), among Chancellor Broadcasting
Company ("Chancellor"), CRBC, Evergreen Media Corporation ("Evergreen"),
Evergreen Mezzanine Holdings Corporation ("EMHC") and Evergreen Media
Corporation of Los Angeles ("EMCLA"), (i) Chancellor was merged (the "Parent
Merger") with and into EMHC, a direct, wholly-owned subsidiary of Evergreen,
with EMHC remaining as the surviving corporation and (ii) CRBC was merged (the
"Subsidiary Merger") with and into EMCLA, a direct, wholly-owned subsidiary of
EMHC, with EMCLA remaining as the surviving corporation (collectively, the
"Chancellor Merger"). Upon consummation of the Parent Merger, Evergreen was
renamed Chancellor Media Corporation and EMHC was renamed Chancellor Mezzanine
Holdings Corporation ("CMHC"). Upon consummation of the Subsidiary Merger, the
Company was renamed Chancellor Media Corporation of Los Angeles . Consummation
of the Chancellor Merger added 52 radio stations (36 FM and 16 AM) to the
Company's portfolio of stations, including 13 stations in markets in which the
Company previously operated. The total purchase price allocated to net assets
acquired was approximately $1,998,383 which included (i) the conversion of each
outstanding share of Chancellor Common Stock into 0.9091 shares of Chancellor
Media Common Stock, resulting in the issuance of 34,617,460 shares of Chancellor
Media Common Stock at $15.50 per share, (ii) the assumption of long-term debt of
CRBC of $949,000 which included $549,000 of borrowings outstanding under the
CRBC senior credit facility, $200,000 of CRBC's 9 3/8% Senior Subordinated Notes
due 2004 and $200,000 of CRBC's 8 3/4% Senior Subordinated Notes due 2007 (iii)
the issuance of 2,117,629 shares of the Company's 12% Exchangeable Preferred
Stock in exchange for CRBC's substantially identical securities with a fair
value of $215,570 including accrued and unpaid dividends of $3,807, (iv) the
issuance of 1,000,000 shares of the Company's 12 1/4% Series A Senior Cumulative
Exchangeable Preferred Stock in exchange for CRBC's substantially identical
securities with a fair value of $120,217 including accrued and unpaid dividends
of $772, (v) the issuance of 2,200,000 shares of Chancellor Media's 7%
Convertible Preferred Stock in exchange for Chancellor's substantially identical
securities with a fair value of $111,048 including accrued and unpaid dividends
of $1,048, (vi) the assumption of stock options issued to Chancellor stock
option holders with a fair value of $34,977 and (vii) estimated acquisition
costs of $31,000.
On October 28, 1997, the Company acquired Katz Media Group, Inc. ("KMG") a
full-service media representation firm, in a tender offer transaction for a
total purchase price of approximately $379,101 (the "Katz Acquisition") which
included (i) the conversion of each outstanding share of KMG Common Stock into
the right to receive $11.00 in cash, resulting in total cash payments of
$149,601, (ii) the assumption of long-term debt of KMG of $222,000 which
included $122,000 of borrowings outstanding under the KMG senior credit facility
and $100,000 of 10 1/2% Senior Subordinated Notes due 2007 of Katz Media
Corporation (a subsidiary of KMG) and (iii) estimated acquisition costs of
$7,500.
F-15
<PAGE> 198
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On December 29, 1997, the Company acquired five radio stations from Pacific
and Southern Company, Inc., a subsidiary of Gannett Co., Inc., consisting of
WGCI-FM/AM in Chicago for $140,000, KKBQ-FM/AM in Houston for $110,000 and
KHKS-FM in Dallas for $90,000, for an aggregate purchase price of $340,000 in
cash plus various other direct acquisition costs.
On January 30, 1998, the Company acquired KXPK-FM in Denver from Ever Green
Wireless LLC (which is unrelated to the Company) for $26,000 in cash plus
various other direct acquisition costs, of which $1,655 was previously paid by
CRBC as escrow funds and are classified as other assets at December 31, 1997.
The Company had previously been operating KXPK-FM under a time brokerage
agreement since September 1, 1997.
The acquisitions discussed above were accounted for as purchases.
Accordingly, the accompanying consolidated financial statements include the
results of operations of the acquired entities from the dates of acquisition.
A summary of the net assets acquired follows:
<TABLE>
<CAPTION>
1995 1996 1997
-------- -------- ----------
<S> <C> <C> <C>
Working capital, including cash of $492 in 1995,
$1,011 in 1996 and $9,724 in 1997................. $ 12,012 $ 11,218 $ 66,805
Property and equipment.............................. 11,684 11,519 118,371
Assets held for sale (note 2)....................... -- 32,000 131,000
Intangible assets................................... 264,650 465,824 3,823,746
Other assets........................................ -- -- 26,742
Deferred tax liability.............................. (29,712) (61,218) (279,371)
Other liabilities................................... -- -- (39,681)
-------- -------- ----------
$258,634 $459,343 $3,847,612
======== ======== ==========
</TABLE>
The pro forma consolidated condensed results of operations data for 1996
and 1997, as if the 1996 and 1997 acquisitions and dispositions discussed above,
the 8 1/8% Notes offering described in note 7(f) and the amendment and
restatement of the Senior Credit Facility described in note 7(a) occurred at
January 1, 1996, follow:
<TABLE>
<CAPTION>
UNAUDITED
----------------------
1996 1997
--------- ----------
<S> <C> <C>
Net revenues................................................ $ 882,054 $1,002,784
Net loss.................................................... (216,229) (149,683)
</TABLE>
The pro forma results are not necessarily indicative of what would have
occurred if the transactions had been in effect for the entire periods
presented.
(b) Pending Transactions
On July 1, 1996, CRBC entered into an agreement with SFX Broadcasting, Inc.
("SFX") pursuant to which CRBC agreed to exchange WAPE-FM and WFYV-FM in
Jacksonville and $11,000 in cash to SFX in return for WBAB-FM, WBLI-FM, WHFM-FM
and WGBB-AM in Nassau/Suffolk (Long Island) (the "SFX Exchange"). The Company
currently operates WBAB-FM, WBLI-FM, WHFM-FM and WGBB-FM pursuant to a time
brokerage agreement effective July 1, 1996 and SFX currently operates WAPE-FM
and WFYV-FM pursuant to a time brokerage agreement effective July 1, 1996. On
November 6, 1997, the Antitrust Division of the United States Department of
Justice (the "DOJ") filed suit against the Company seeking to enjoin, under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
F-16
<PAGE> 199
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Act"), the Company's acquisition of the four Long Island properties from SFX. If
the Company is unable to acquire the four Long Island properties, the SFX
Exchange will not be consummated. Furthermore, under the terms of the Capstar
Transaction (as defined below), upon consummation of Capstar Broadcasting
Corporation's pending acquisition of SFX, the SFX Exchange would be terminated.
On August 6, 1997, the Company paid $3,000 to Bonneville for an option to
exchange WTOP-AM in Washington, KZLA-FM in Los Angeles and WGMS-FM in Washington
and $57,000 in cash for Bonneville's stations WBIX-FM in New York, KLDE-FM in
Houston and KBIG-FM in Los Angeles (the "Bonneville Option"). The Bonneville
Option was exercised on October 1, 1997, and definitive exchange documentation
is presently being negotiated. The Company has entered into time brokerage
agreements to operate KLDE-FM and KBIG-FM effective October 1, 1997 and WBIX-FM
effective October 10, 1997 and has entered into time brokerage agreements to
sell substantially all of the broadcast time of WTOP-AM, KZLA-FM and WGMS-FM
effective October 1, 1997.
On February 17, 1998, the Company entered into an agreement to acquire
WWDC-FM/AM in Washington, D.C. from Capitol Broadcasting Company and its
affiliates for $72,000 in cash (including $4,000 paid by the Company in escrow
on February 18, 1998), plus an amount equal to the value assigned to certain
accounts receivable for the stations (the "Capitol Broadcasting Acquisition").
Consummation of the Capitol Broadcasting Acquisition is conditioned, among other
things, on the consummation of the exchanges of the Company's Washington, D.C.
stations that are subject to the Bonneville Option.
On February 20, 1998, the Company entered into an agreement to acquire from
Capstar Broadcasting Corporation (together with its subsidiaries, "Capstar")
KTXQ-FM and KBFB-FM in Dallas/Ft. Worth, KODA-FM, KKRW-FM and KQUE-AM in
Houston, KPLN-FM and KYXY-FM in San Diego and WVTY-FM, WJJJ-FM, WXDX-FM and
WDVE-FM in Pittsburgh (collectively, the "Capstar/SFX Stations") for an
aggregate purchase price of approximately $637,500 (the "Capstar Transaction").
The Capstar/SFX Stations are presently owned by SFX, and are expected to be
acquired by Capstar as part of Capstar's pending acquisition of SFX (the
"Capstar/SFX Acquisition"). The Capstar/SFX Stations would be acquired by the
Company in a series of purchases and exchanges over a period of three years, and
would be operated by the Company under time brokerage agreements immediately
upon the consummation of the Capstar/SFX Acquisition until acquired by the
Company. As part of the Capstar Transaction, the SFX Exchange would, upon
consummation of the Capstar/SFX Acquisition, be terminated and the Company would
exchange WAPE-FM and WFYV-FM in Jacksonville (valued for purposes of the Capstar
Transaction at $53,000) plus $90,250 in cash for Capstar/SFX Station KODA-FM in
Houston. The Company would pay approximately $494,250 for the remaining ten
Capstar/SFX Stations. As part of the Capstar Transaction, the Company would, at
the consummation of the Capstar/SFX Acquisition, provide a subordinated loan to
Capstar in the principal amount of $250,000 (the "Capstar Loan"). The Capstar
Loan would bear interest at the rate of 12% per annum (subject to increase in
certain circumstances), and would be secured by a senior pledge of common stock
of Capstar's direct subsidiaries and SFX and a senior guarantee by one of
Capstar's direct subsidiaries. A portion of the Capstar Loan would be prepaid by
Capstar in connection with the Company's acquisition of, and the proceeds of
such prepayment would be used by the Company as a portion of the purchase price
for, each Capstar/SFX Station. The Company's obligation to provide the Capstar
Loan is conditioned, among other things, on Capstar's receipt of at least
$650,000 in equity investments that are subordinate to the Capstar Loan between
January 1, 1998 and the consummation of the Capstar/SFX Acquisition. Hicks,
Muse, Tate & Furst, Incorporated ("Hicks Muse"), which is a substantial
shareholder of the Company (see note 14), controls Capstar, and certain
directors of the Company are directors and/or executive officers of Capstar
and/or Hicks Muse.
Consummation of each of the transactions discussed above is subject to
various conditions, including approval from the FCC and the expiration or early
termination of any waiting period required under the HSR Act. Except with
respect to the SFX Exchange, which the Company expects will be terminated in
connection
F-17
<PAGE> 200
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
with the Capstar Transaction, the Company believes that such conditions will be
satisfied in the ordinary course, but there can be no assurance that this will
be the case.
Escrow funds of $4,655 paid by the Company in connection with the
acquisition of KXPK-FM in Denver on January 30, 1998 and the Bonneville Option
have been classified as other assets in the accompanying balance sheet at
December 31, 1997.
(3) OTHER ASSETS
Other current assets consist of the following at December 31, 1996 and
1997:
<TABLE>
<CAPTION>
1996 1997
------ -------
<S> <C> <C>
Representation contracts receivable......................... $ -- $16,462
Prepaid expenses and other.................................. 6,352 10,746
------ -------
$6,352 $27,208
====== =======
</TABLE>
Other assets consist of the following at December 31, 1996 and 1997:
<TABLE>
<CAPTION>
1996 1997
------- --------
<S> <C> <C>
Deferred costs on purchases of representation contracts,
less accumulated amortization of $380 in 1997............. $ -- $ 35,411
Deferred debt issuance costs, less accumulated amortization
of $1,794 in 1996 and $943 in 1997........................ 7,086 24,624
Notes receivable (note 2)................................... -- 18,000
Representation contracts receivable......................... -- 12,187
Escrow deposits............................................. 17,000 4,655
Other....................................................... 466 18,699
------- --------
$24,552 $113,576
======= ========
</TABLE>
(4) PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 1996 and
1997:
<TABLE>
<CAPTION>
ESTIMATED USEFUL LIFE 1996 1997
--------------------- ------- --------
<S> <C> <C> <C>
Broadcast and other equipment.................. 3-15 years $47,937 $115,440
Buildings and improvements..................... 3-20 years 11,735 24,308
Furniture and fixtures......................... 5-7 years 8,392 29,659
Land........................................... -- 7,379 23,122
------- --------
75,443 192,529
Less accumulated depreciation.................. 27,250 32,732
------- --------
$48,193 $159,797
======= ========
</TABLE>
F-18
<PAGE> 201
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(5) INTANGIBLE ASSETS
Intangible assets consist of the following at December 31, 1996 and 1997:
<TABLE>
<CAPTION>
ESTIMATED USEFUL LIFE 1996 1997
--------------------- ---------- ----------
<S> <C> <C> <C>
Broadcast licenses......................... 15-40 $ 498,766 $3,507,547
Goodwill................................... 15-40 131,775 717,576
Representation contracts................... 17 -- 105,000
Other intangibles.......................... 1-40 397,062 386,272
---------- ----------
1,027,603 4,716,395
Less accumulated amortization.............. 173,960 311,952
---------- ----------
$ 853,643 $4,404,443
========== ==========
</TABLE>
In addition to broadcast licenses, goodwill and representation contracts,
categories of other intangible assets include: (i) premium advertising revenue
base (the value of the higher radio advertising revenues in certain of the
Company's markets as compared to other markets of similar population); (ii)
advertising client base (the value of the well-established advertising base in
place at the time of acquisition of certain stations); (iii) talent contracts
(the value of employment contracts between certain stations and their key
employees); (iv) fixed asset delivery premium (the benefit expected from the
Company's ability to operate fully constructed and operational stations from the
date of acquisition), and (v) premium audience growth pattern (the value of
expected above-average population growth in a given market).
(6) ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consist of the following at December
31, 1996 and 1997:
<TABLE>
<CAPTION>
1996 1997
------- --------
<S> <C> <C>
Accounts payable............................................ $17,746 $ 83,738
Accrued payroll............................................. 7,262 31,349
Representation contracts payable............................ -- 21,680
Accrued interest............................................ 1,642 18,130
Accrued dividends........................................... -- 16,120
------- --------
$26,650 $171,017
======= ========
</TABLE>
(7) LONG-TERM DEBT
Long-term debt consists of the following at December 31, 1996 and 1997:
<TABLE>
<CAPTION>
1996 1997
-------- ----------
<S> <C> <C>
Senior Credit Facility(a)................................... $348,000 $1,573,000
Senior Notes(b)............................................. 10,000 --
9 3/8% Notes(c)............................................. -- 200,000
8 3/4% Notes(d)............................................. -- 200,000
10 1/2% Notes(e)............................................ -- 100,000
8 1/8% Notes(f)............................................. -- 500,000
-------- ----------
Total long-term debt.............................. 358,000 2,573,000
Less current portion........................................ 26,500 --
-------- ----------
$331,500 $2,573,000
======== ==========
</TABLE>
F-19
<PAGE> 202
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(a) Senior Credit Facility
On April 25, 1997, the Company entered into a loan agreement which amended
and restated its prior senior credit facility. Under the amended and restated
agreement, as amended on June 26, 1997, August 7, 1997, October 28, 1997 and
February 10, 1998 (as amended, the "Senior Credit Facility"), the Company
established a $1,250,000 revolving facility (the "Revolving Loan Facility") and
a $500,000 term loan facility (the "Term Loan Facility"). Upon consummation of
the Chancellor Merger, the aggregate commitments under the Revolving Loan
Facility and the Term Loan Facility were increased to $1,600,000 and $900,000,
respectively. In connection with the amendment and restatement of the Senior
Credit Facility, the Company wrote off the unamortized balance of deferred debt
issuance costs of $4,350 (net of a tax benefit of $2,343) as an extraordinary
charge.
Borrowings under the Senior Credit Facility bear interest at a rate based,
at the option of the Company, on the participating banks' prime rate or
Eurodollar rate, plus an incremental rate. Without giving effect to the interest
rate swap and cap agreements described below, the interest rate on the $900,000
outstanding under the Term Loan at December 31, 1997 was 7.09% on a blended
basis, based on Eurodollar rates, and the interest rate on the $665,000 and
$8,000 of advances outstanding under the Revolving Loan were 7.06% on a blended
basis and 8.63% at December 31, 1997, based on the Eurodollar and prime rates,
respectively. The Company pays fees ranging from 0.25% to 0.375% per annum on
the aggregate unused portion of the loan commitment based upon the leverage
ratio for the most recent quarter end, in addition to an annual agent's fee.
Pursuant to the Senior Credit Facility, the Company is required to enter
into interest hedging agreements that result in fixing or placing a cap on the
Company's floating rate debt so that no less than 50% of the principal amount of
total debt outstanding has a fixed or capped rate. At December 31, 1997,
interest rate swap agreements covering a notional balance of $1,325,000 were
outstanding. These outstanding swap agreements mature from 1998 through 1999 and
require the Company to pay fixed rates of 4.96% to 6.63% while the counterparty
pays a floating rate based on the three-month London Interbank Borrowing Offered
Rate ("LIBOR"). During the years ended December 31, 1995, 1996 and 1997, the
Company recognized charges (income) under its interest rate swap agreements of
$(275), $111 and $2,913, respectively. Because the interest rate swap agreements
are with banks that are lenders under the Senior Credit Facility, the Company is
not exposed to credit loss.
The Term Loan Facility is payable in quarterly installments commencing on
September 30, 2000 and ending June 30, 2005. The Revolving Loan Facility
requires scheduled annual reductions of the commitment amount, payable in
quarterly installments commencing on September 30, 2000 and ending on June 30,
2005. The capital stock of the Company's subsidiaries is pledged to secure the
performance of the Company's obligations under the Senior Credit Facility, and
each of the Company's subsidiaries have guaranteed those obligations.
(b) Senior Notes
The Company issued $20,000 of senior notes (the "Senior Notes") in 1989.
The Senior Notes bear interest at 11.59% per annum payable quarterly and
principal is payable in equal quarterly installments of $1,000 through May 1999.
In connection with the amendment and restatement of the Senior Credit Facility,
on April 25, 1997, the Company repaid all amounts outstanding under the Senior
Notes.
(c) 9 3/8% Notes
Upon consummation of the Chancellor Merger, on September 5, 1997, the
Company assumed CRBC's $200,000 aggregate principal amount of 9 3/8% Senior
Subordinated Notes due 2004 (the "9 3/8% Notes"). Interest on the 9 3/8% Notes
is payable semiannually, commencing on April 1, 1996. The 9 3/8% Notes mature on
F-20
<PAGE> 203
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
October 1, 2004 and are redeemable, in whole or in part, at the option of the
Company on or after February 1, 2000, at redemption prices ranging from 104.688%
at February 1, 2000 and declining to 100% on or after February 1, 2003, plus in
each case accrued and unpaid interest. In addition, on or prior to January 31,
1999, the Company may redeem up to 25% of the original aggregate principal
amount of the 9 3/8% Notes at a redemption price of 107.031% plus accrued and
unpaid interest with the net proceeds of one or more public equity offerings of
CMHC or the Company. Upon the occurrence of a change in control (as defined in
the indenture governing the 9 3/8% Notes), the holders of the 9 3/8% Notes have
the right to require the Company to repurchase all or any part of the 9 3/8%
Notes at a purchase price equal to 101% plus accrued and unpaid interest.
(d) 8 3/4% Notes
Upon consummation of the Chancellor Merger, on September 5, 1997, the
Company assumed CRBC's $200,000 aggregate principal amount of 8 3/4% Senior
Subordinated Notes due 2007 (the "8 3/4% Notes"). Interest on the 8 3/4% Notes
is payable semiannually, commencing on December 15, 1997. The 8 3/4% Notes
mature on June 15, 2007 and are redeemable, in whole or in part, at the option
of the Company on or after June 15, 2002, at redemption prices ranging from
104.375% at June 15, 2002 and declining to 100% on or after June 15, 2005, plus
in each case accrued and unpaid interest. In addition, prior to June 15, 2000,
the Company may redeem up to 25% of the original aggregate principal amount of
the 8 3/4% Notes at a redemption price of 108.75% plus accrued and unpaid
interest with the net proceeds of one or more public equity offerings of CMHC or
the Company. Upon the occurrence of a change in control (as defined in the
indenture governing the 8 3/4% Notes) on or prior to June 15, 2000, the 8 3/4%
Notes may be redeemed as a whole at the option of the Company at a redemption
price of 100% plus the Applicable Premium (as defined in the indenture governing
the 8 3/4% Notes) and accrued and unpaid interest. Upon the occurrence of a
change in control after June 15, 2000, the holders of the 8 3/4% Notes have the
right to require the Company to repurchase all or any part of the 8 3/4% Notes
at a purchase price equal to 101% plus accrued and unpaid interest.
(e) 10 1/2% Notes
Upon consummation of the Katz Acquisition, on October 28, 1997, the Company
assumed Katz Media Corporation's $100,000 aggregate principal amount of 10 1/2%
Senior Subordinated Notes due 2007 (the "10 1/2% Notes"). Interest on the
10 1/2% Notes is payable semiannually, commencing on July 15, 1997. The 10 1/2%
Notes mature on January 15, 2007 and are redeemable, in whole or in part, at the
option of the Company on or after January 15, 2002, at redemption prices ranging
from 105.25% at January 15, 2002 and declining to 100% on or after January 15,
2006, plus in each case accrued and unpaid interest. In addition, prior to
January 15, 2000, the Company may redeem up to 35% of the original aggregate
principal amount of the 10 1/2% Notes at a redemption price of 109.5% plus
accrued and unpaid interest with the net proceeds of one or more offerings of
equity interests of Chancellor Media, CMHC or the Company. Upon the occurrence
of a change in control (as defined in the indenture governing the 10 1/2%
Notes), the holders of the 10 1/2% Notes have the right to require the Company
to repurchase all or any part of the 10 1/2% Notes at a purchase price equal to
101% plus accrued and unpaid interest.
(f) 8 1/8% Notes
On December 22, 1997, the Company issued $500,000 aggregate principal
amount of 8 1/8% Senior Subordinated Notes due 2007 (the "8 1/8% Notes") for
estimated net proceeds of $485,000. Interest on the 8 1/8% Notes is payable
semiannually, commencing on June 15, 1998. The 8 1/8% Notes mature on December
15, 2007 and are redeemable, in whole or in part, at the option of the Company
on or after December 15, 2002, at redemption prices ranging from 104.063% at
December 15, 2002 and declining to 100% on or after December 15, 2005, plus in
each case accrued and unpaid interest. In addition, prior to December 15, 2000,
the Company may redeem up to 35% of the original aggregate principal amount of
the 8 1/8% Notes at a
F-21
<PAGE> 204
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
redemption price of 108.125% plus accrued and unpaid interest with the net
proceeds of one or more public equity offerings of Chancellor Media, CMHC or the
Company. Also, upon the occurrence of a change in control (as defined in the
indenture governing the 8 1/8% Notes), the 8 1/8% Notes may be redeemed as a
whole at the option of the Company at a redemption price of 100% plus the
Applicable Premium (as defined in the indenture governing the 8 1/8% Notes) and
accrued and unpaid interest. Upon the occurrence of a change in control after
December 15, 2000, the holders of the 8 1/8% Notes have the right to require the
Company to repurchase all or any part of the 8 1/8% Notes at a purchase price
equal to 101% plus accrued and unpaid interest.
(g) Summarized Financial Information of Subsidiary Guarantors
The 9 3/8% Notes, the 8 3/4% Notes, the 10 1/2% Notes and the 8 1/8% Notes
(collectively, the "Notes") are unsecured obligations of the Company,
subordinated in right of payment to all existing and any future senior
indebtedness of the Company. The Notes are fully and unconditionally guaranteed,
on a joint and several basis, by all of the Company's direct and indirect
subsidiaries other than certain inconsequential subsidiaries (the "Subsidiary
Guarantors"). The Subsidiary Guarantors are wholly-owned subsidiaries of the
Company. Summarized financial information of the Subsidiary Guarantors as of
December 31, 1997 and for the year ended December 31, 1997 is presented below.
Separate financial statements and other disclosures concerning the Subsidiary
Guarantors are not presented because management has determined that they are not
material to investors. There are no significant restrictions on distributions
from each of the Subsidiary Guarantors to the Company.
<TABLE>
<CAPTION>
1997
---------
<S> <C>
Current assets.............................................. 223,913
Noncurrent assets........................................... 987,028
Current liabilities......................................... 89,362
Noncurrent liabilities...................................... 1,130,105
Net revenues................................................ 495,485
Operating income............................................ 58,354
Net loss.................................................... (17,721)
</TABLE>
(h) Other
The Senior Credit Facility and the indentures governing the Notes contain
customary restrictive covenants, which, among other things and with certain
exceptions, limit the ability of the Company and its subsidiaries to incur
additional indebtedness and liens in connection therewith, enter into certain
transactions with affiliates, pay dividends, consolidate, merge or effect
certain asset sales, issue additional stock, effect an asset swap and make
acquisitions. The Company is required under the Senior Credit Facility to
maintain specified financial ratios, including leverage, cash flow and debt
service coverage ratios (as defined).
A summary of the future maturities of long-term debt at December 31, 1997
follows:
<TABLE>
<S> <C>
1998........................................................ $ --
1999........................................................ --
2000........................................................ 67,500
2001........................................................ 157,500
2002........................................................ 180,000
Thereafter.................................................. 2,168,000
</TABLE>
F-22
<PAGE> 205
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(8) REDEEMABLE PREFERRED STOCK
(a) 12 1/4% Preferred Stock
Upon consummation of the Chancellor Merger, on September 5, 1997, the
Company issued 1,000,000 shares of 12 1/4% Series A Senior Cumulative
Exchangeable Preferred Stock (the "12 1/4% Preferred Stock") in exchange for
CRBC's substantially identical securities with a fair value of $120,217
including accrued and unpaid dividends of $772. The liquidation preference of
each share of 12 1/4% Preferred Stock is $119.445 plus accrued and unpaid
dividends of $1,829 at December 31, 1997. The dividend rate on the 12 1/4%
Preferred Stock is 12.25% per annum of the liquidation preference and is payable
quarterly. If any dividend payable on any dividend payment date on or before
February 15, 2001 is not declared or paid in full in cash on such dividend
payment date, the amount not paid on such dividend payment date will be added to
the liquidation preference of the 12 1/4% Preferred Stock and will be deemed
paid in full and will not accumulate. The 12 1/4% Preferred Stock is redeemable
in whole or in part, at the option of the Company on or after February 15, 2001,
at redemption prices ranging from 106.125% at February 15, 2001 and declining to
100.0% of the liquidation preference on or after February 15, 2006, plus in each
case accrued and unpaid dividends. In addition, prior to February 15, 1999, the
Company may redeem up to 25% of the shares of 12 1/4% Preferred Stock originally
issued at a redemption price of 109.8% of the liquidation preference plus
accrued and unpaid dividends with the net proceeds of one or more public equity
offerings of the Company. The Company is required, subject to certain
conditions, to redeem all of the 12 1/4% Preferred Stock outstanding on February
15, 2008, at a redemption price of 100% of the liquidation preference, plus
accrued and unpaid dividends. The 12 1/4% Preferred Stock is exchangeable,
subject to certain conditions, at the option of the Company, in whole but not in
part, for 12 1/4% Subordinated Exchange Debentures due 2008 (the "12 1/4%
Exchange Debentures") at a rate of $1.00 principal amount of 12 1/4% Exchange
Debentures for each $1.00 in liquidation preference of 12 1/4% Preferred Stock.
Upon the occurrence of a change in control (as defined in the certificate of
designation governing the 12 1/4% Preferred Stock), the holders of the 12 1/4%
Preferred Stock have the right to require the Company to repurchase all or any
part of the 12 1/4% Preferred Stock at a price of 101% of the liquidation
preference plus accrued and unpaid dividends. The 12 1/4% Preferred Stock is
senior in liquidation preference to the Common Stock of the Company and to the
12% Preferred Stock.
(b) 12% Preferred Stock
Upon consummation of the Chancellor Merger, on September 5, 1997, the
Company issued 2,117,629 shares of 12% Exchangeable Preferred Stock (the "12%
Preferred Stock") in exchange for CRBC's substantially identical securities with
a fair value of $215,570 including accrued and unpaid dividends of $3,807. The
liquidation preference of each share of 12% Preferred Stock is $100.00 plus
accrued and unpaid dividends of $11,756 at December 31, 1997. The dividend rate
on the 12% Preferred Stock is 12% per annum of the liquidation preference and is
payable semi-annually. Dividends may be paid, at the Company's option, on any
dividend payment date occurring on or prior to January 15, 2002 either in cash
or in additional shares of 12% Preferred Stock. The 12% Preferred Stock is
redeemable in whole or in part, at the option of the Company, on or after
January 15, 2002, at redemption prices ranging from 106% at January 15, 2002 and
declining to 100% of the liquidation preference on or after January 15, 2007,
plus in each case accrued and unpaid dividends. In addition, prior to January
15, 2000, the Company may redeem all but $150,000 of the aggregate liquidation
preference of 12% Preferred Stock at a redemption price of 112% of the
liquidation preference plus accrued and unpaid dividends with the net proceeds
of one or more public equity offerings of the Company. The Company is required,
subject to certain conditions, to redeem all of the 12% Preferred Stock
outstanding on January 15, 2009, at a redemption price of 100% of the
liquidation preference, plus accrued and unpaid dividends. The 12% Preferred
Stock is exchangeable, subject to certain conditions, at the option of the
Company, in whole but not in part, for 12% Subordinated Exchange Debentures due
2009 (the "12% Exchange Debentures") at a rate of $1.00 principal amount of 12%
Exchange Debentures for each $1.00 in liquidation preference of 12% Preferred
Stock. Upon the occurrence of a change in control (as defined in
F-23
<PAGE> 206
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
the certificate of designation governing the 12% Preferred Stock), the holders
of the 12% Preferred Stock have the right to require the Company to repurchase
all or any part of the 12% Preferred Stock at a price of 101% of the liquidation
preference plus accrued and unpaid dividends. In addition, upon the occurrence
of a change in control, the Company may redeem the 12% Preferred Stock in whole
but not in part at a redemption price of 112% of the liquidation preference plus
accrued and unpaid dividends. The 12% Preferred Stock is senior in liquidation
preference to the Common Stock of the Company and is subordinate to the 12 1/4%
Preferred Stock.
(9) STOCKHOLDER'S EQUITY
(a) On March 13, 1998, Chancellor Media completed a secondary public
offering of 21,850,000 shares of its Common Stock (the "1998 Offering"). The net
proceeds from the 1998 Offering of approximately $995.1 million were contributed
to the Company by Chancellor Media.
(b) Stock Options
Chancellor Media has established the 1992, 1993 and 1995 Key Employee Stock
Option Plans (the "Employee Option Plans") which provide for the issuance of
stock options to officers and other key employees of the Company and its
subsidiaries. The Employee Option Plans make available for issuance an aggregate
of 7,215,000 shares of Common Stock. Options issued under the Employee Option
Plans have varying vesting periods as provided in separate stock option
agreements and generally carry an expiration date of ten years subsequent to the
date of issuance. Options issued under the 1993 and 1995 Employee Option Plans
are required to have exercise prices equal to or in excess of the fair market
value of Chancellor Media Common Stock on the date of issuance.
In May 1995, Chancellor Media also established the Stock Option Plan for
Non-Employee Directors (the "Director Plan") which provides for the issuance of
stock options to non-employee directors of the Company. The Director Plan makes
available for issuance an aggregate of 450,000 shares of Chancellor Media Common
Stock. Options issued under the Director Plan have exercise prices equal to the
fair market value of Chancellor Media Common Stock on the date of issuance, vest
over a three year period and have an expiration date of ten years subsequent to
the date of issuance.
In connection with the BPI Acquisition, Chancellor Media assumed
outstanding options to purchase 310,276 shares of Chancellor Media Common Stock
(the "BPI Options"). The BPI Options vested and became exercisable on May 12,
1996 and have an expiration date of ten years subsequent to the original date of
issuance by BPI.
In connection with the Chancellor Merger, Chancellor Media assumed
outstanding options to purchase 3,526,112 shares of Chancellor Media Common
Stock (the "Chancellor Options") with a fair value of $34,977. The Chancellor
Options have varying vesting periods as provided in separate stock option
agreements and generally carry an expiration date of ten years subsequent to the
original date of issuance by Chancellor.
The total options available for grant were 3,679,500 and 1,115,894 at
December 31, 1996 and 1997, respectively.
Chancellor Media applies APB Opinion No. 25 in accounting for its Employee
Option Plans and, accordingly, no compensation cost has been recognized for its
stock options in the consolidated financial statements. Had Chancellor Media
determined compensation cost based on the fair value at the grant date for
F-24
<PAGE> 207
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
its stock options under SFAS No. 123, the Company's net loss would have been
increased to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Net loss:
As reported.......................................... $(5,850) $(16,194) $(31,745)
Pro forma............................................ (8,787) (20,969) (36,650)
</TABLE>
Pro forma net loss reflects only options granted in 1995, 1996 and 1997.
Therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net loss amounts presented
above because compensation cost is reflected over the options' vesting period of
one year and compensation cost for options granted prior to 1995 is not
considered.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following weighted average
assumptions used for grants: expected volatility of 44.5% for 1995 and 1996 and
41.9% for 1997; risk-free interest rate of 6.0% for 1995 and 1996 and 5.4% for
1997; dividend yield of 0% and expected lives ranging from three to seven years
for 1995, 1996 and 1997.
Following is a summary of activity in the employee option plans and
agreements discussed above for the years ended December 31, 1995, 1996 and 1997:
<TABLE>
<CAPTION>
1995 1996 1997
-------------------- -------------------- --------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
--------- -------- --------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of
year.......................... 1,956,000 $ 1.55 2,579,748 $ 3.46 3,559,984 $ 5.97
Granted......................... 516,000 10.08 1,174,500 11.56 2,773,590 22.89
Assumed in acquisitions......... 310,276 4.85 -- -- 3,526,112 9.29
Exercised....................... (51,000) 0.65 (166,806) 4.27 (994,526) 5.43
Canceled........................ (151,528) 4.30 (27,458) 4.96 (38,464) 19.46
--------- ------ --------- ------ --------- ------
Outstanding at end of year...... 2,579,748 $ 3.46 3,559,984 $ 5.97 8,826,696 $12.98
========= ====== ========= ====== ========= ======
Options exercisable at year
end........................... 1,890,000 1,935,484 5,687,960
========= ========= =========
Weighted average fair value of
options granted during the
year.......................... 4.27 4.88 10.25
========= ========= =========
</TABLE>
The following table summarizes information about stock options outstanding
at December 31, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
-------------------------------------------- -------------------------
NUMBER WEIGHTED WEIGHTED NUMBER WEIGHTED
OUTSTANDING AT AVERAGE AVERAGE EXERCISABLE AT AVERAGE
RANGE OF DECEMBER 31, REMAINING EXERCISE DECEMBER 31, EXERCISE
EXERCISE PRICES 1997 CONTRACTUAL LIFE PRICE 1997 PRICE
--------------- -------------- ---------------- -------- -------------- --------
<S> <C> <C> <C> <C> <C>
$0.01........................... 1,000,000 5.3 years $ 0.01 1,000,000 $ 0.01
$4.13 to 6.17................... 2,186,056 7.2 years 4.58 2,039,692 4.60
$10.67 to 15.81................. 2,378,562 8.3 years 11.49 983,624 11.63
$17.05 to 23.75................. 2,769,078 9.5 years 21.38 1,464,644 22.50
$26.38 to 31.63................. 493,000 9.8 years 28.32 200,000 27.50
--------- ------ --------- ------
8,826,696 12.98 5,687,960 10.44
========= ====== ========= ======
</TABLE>
F-25
<PAGE> 208
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(10) EMPLOYEE BENEFIT PLANS
(a) 401(k) Plan
The Company offers substantially all of its employees voluntary
participation in a 401(k) Plan. The Company may make discretionary contributions
to the plan; however, no such contributions were made by the Company during
1995, 1996 or 1997.
(b) Katz Savings and Profit Sharing Plan
Katz has a defined contribution retirement plan, The Katz Media Group
Savings and Profit Sharing Plan (the "Katz Plan"). The Katz Plan covers
substantially all employees of Katz with greater than six months of service. The
Katz Plan permits Katz to match a percentage of a participant's contribution up
to a stated maximum percentage of an employee's salary. Cash contributions
included in to operating expenses approximated $200 for the year ended December
31, 1997. Effective January 1, 1998, the Company elected to discontinue cash
contributions under the matching provision of the Katz Plan. The Company intends
to merge the Katz Plan into the Company's 401(k) Plan during 1998.
(c) Katz Other Postretirement Benefits
Prior to the Company's acquisition of Katz on October 28, 1997, Katz
provided for certain medical, dental and life insurance benefits for employees
who retire beginning at age 55 with a minimum of 15 years of service and for
employees who retire at age 65 with a minimum of 10 years of service. The
Company will continue providing this coverage only for retirees and
beneficiaries currently receiving coverage and those active employees who have,
or will have attained by December 31, 1998, the age and service necessary to
receive coverage.
The accumulated post retirement benefit obligation ("APBO") consists of
$703 for retirees and $337 for active employees fully eligible for benefits for
a total APBO of $1,040 at December 31, 1997. As of December 31, 1997, Katz and
its subsidiaries have not funded any portion of the accumulated postretirement
benefit obligation. The net periodic postretirement benefit cost consists of
interest cost on the APBO of $11 for the year ended December 31, 1997. The APBO
was determined using an assumed discount rate of 6.5% and a health care cost
trend rate of 5% per annum for all future years. The effect of a 1% increase in
the health care cost trend rate would increase the APBO by $368 and would
increase the service and interest cost components of the net periodic
postretirement benefit cost by $24.
(11) INCOME TAXES
Income tax expense (benefit) from continuing operations consists of the
following:
<TABLE>
<CAPTION>
1995 1996 1997
----- ------- -------
<S> <C> <C> <C>
Current tax expense:
Federal............................................... $ 246 $ 485 $ 6,840
State................................................. 425 972 4,791
----- ------- -------
Total current tax expense............................... 671 1,457 11,631
Deferred benefit........................................ (479) (4,353) (3,829)
----- ------- -------
Total income tax expense (benefit)...................... $ 192 $(2,896) $ 7,802
===== ======= =======
</TABLE>
During 1997, the Company incurred an extraordinary loss on extinguishment
of debt. The tax benefit related to the extraordinary loss is approximately
$2,343. This tax benefit, which reduces current taxes payable, is separately
allocated to the extraordinary item.
F-26
<PAGE> 209
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Total income tax expense (benefit) differed from the amount computed by
applying the U.S. federal statutory income tax rate of 35% to loss from
continuing operations for the years ended December 31, 1995, 1996 and 1997 as a
result of the following:
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Computed "expected" tax benefit....................... $(1,980) $(6,682) $(2,342)
Amortization of goodwill.............................. 788 2,477 5,744
Net operating loss carryforwards for which no tax
benefit was recognized.............................. 923 -- --
State income taxes, net of federal benefit............ 276 632 2,533
Other, net............................................ 185 677 1,867
------- ------- -------
$ 192 $(2,896) $ 7,802
======= ======= =======
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and liabilities at December 31, 1996 and
1997 are presented below:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Deferred tax assets:
Net operating loss and credit carryforwards............... $ 13,519 $ 38,552
Accrued compensation primarily relating to stock
options................................................ 1,687 1,720
Differences in book and tax bases related to media
representation contracts............................... -- 39,908
Differences in book and tax bases of lease liabilities.... -- 4,727
Other..................................................... 1,215 3,147
--------- ---------
Total deferred tax assets......................... 16,421 88,054
--------- ---------
Deferred tax liabilities:
Property and equipment and intangibles, primarily
resulting from difference in bases from BPI, Pyramid,
Chancellor Merger and Katz acquisitions................ (101,761) (445,992)
Other..................................................... (758) (3,702)
--------- ---------
Total deferred tax liabilities.................... (102,519) (449,694)
--------- ---------
Net deferred tax liability........................ $ (86,098) $(361,640)
========= =========
</TABLE>
Deferred tax assets and liabilities are computed by applying the U.S.
federal and state income tax rate in effect to the gross amounts of temporary
differences and other tax attributes, such as net operating loss carryforwards.
In assessing the realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of the deferred tax
assets will not be realized. The ultimate realization of deferred tax assets is
dependent upon the generation of future taxable income during the periods in
which those temporary differences become deductible. Management considers the
scheduled reversal of deferred tax liabilities, projected future taxable income,
and tax planning strategies in making this assessment. The Company expects the
deferred tax assets at December 31, 1997 to be realized as a result of the
reversal during the carryforward period of existing taxable temporary
differences giving rise to deferred tax liabilities and the generation of
taxable income in the carryforward period.
At December 31, 1997, the Company has net operating loss carryforwards
available to offset future taxable income of approximately $85,000, expiring
from 1998 to 2012 and has alternative minimum tax credit carryforwards of
approximately $3,600 that do not expire. All of the net operating loss and tax
credit
F-27
<PAGE> 210
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
carryforwards at December 31, 1997 are subject to annual use limitations under
tax rules governing changes of ownership.
(12) COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases, primarily for office space.
These leases generally contain renewal options for periods ranging from one to
ten years and require the Company to pay all executory costs such as maintenance
and insurance. Rental expense for operating leases (excluding those with lease
terms of one month or less that were not renewed) was approximately $3,073,
$5,462 and $10,913 during 1995, 1996 and 1997, respectively. Future minimum
lease payments under noncancelable operating leases (with initial or remaining
lease terms in excess of one year) as of December 31, 1997 are as follows:
<TABLE>
<S> <C>
Year ending December 31:
1998...................................................... 30,784
1999...................................................... 28,644
2000...................................................... 26,533
2001...................................................... 25,188
2002...................................................... 23,506
Thereafter................................................ 156,335
</TABLE>
In August 1993, the Company terminated an agreement with Sagittarius
Broadcasting Company (an affiliate of Infinity Broadcasting Corporation) and One
Twelve, Inc. (collectively, the "Claimants" or the "Plaintiffs") pursuant to
which programming featuring radio personality Howard Stern was broadcast on
radio station WLUP-AM (now WMVP-AM) in Chicago. The Claimants allege that
termination of the agreement was wrongful and have sued the Company in the
Supreme Court of the State of New York, County of New York (the "Court"). The
agreement required payments to the Claimants in the amount of $2.6 million plus
five percent of advertising revenues generated by the programming over the
three-year term of the agreement. A total of approximately $680,000 was paid to
the Claimants pursuant to the agreement prior to termination. Claimants'
complaint alleged claims for breach of contract, indemnification, breach of
fiduciary duty and fraud. Claimants' aggregate prayer for relief totaled $45.0
million. On July 12, 1994, the Court granted the Company's motion to dismiss
Claimants' claims for fraud and breach of fiduciary duty. On June 6, 1995, the
Court denied the Claimants' motion for summary judgment on their contract and
indemnification claims and this order has been affirmed on appeal. On May 17,
1996, after the close of discovery, the Company filed a motion for summary
judgment, seeking the dismissal of the remaining claims in the original
complaint. On July 1, 1996, Claimants moved for leave to amend their complaint
in order to add claims for breach of the covenant of good faith and fair
dealing, tortious interference with business advantage and prima facia tort. In
the proposed amended complaint, Claimants seek compensatory and punitive damages
in excess of $25.0 million. On March 13, 1997, the Court denied the Company's
motion for summary judgment, allowed Claimants' request to amend the complaint
to add a claim for breach of the covenant of good faith and fair dealing and
denied Claimants' request to amend the complaint to add claims for tortious
interference with business advantage and prima facia tort. On April 25, 1997,
the Company filed a notice of appeal of the denial of the Company's motion for
summary judgment. In October 1997, the N.Y. State Supreme Court, Appellate
Division, granted a portion of the appeal seeking to strike certain damages
sought, but otherwise affirmed the denial of the motion for summary judgement
and sent the case back to the trial court for trial. The Company believes that
it acted within its rights in terminating the agreement.
The Company is also involved in various other claims and lawsuits which are
generally incidental to its business. The Company is vigorously contesting all
such matters and believes that their ultimate resolution will not have a
material adverse effect on its consolidated financial position, results of
operations or cash flows.
F-28
<PAGE> 211
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(13) FAIR VALUE OF FINANCIAL INSTRUMENTS
The following table presents the carrying amounts and estimated fair values
of the Company's financial instruments at December 31, 1996 and 1997. The fair
value of a financial instrument is defined as the amount at which the instrument
could be exchanged in a current transaction between willing parties.
<TABLE>
<CAPTION>
1996 1997
------------------- -----------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Interest rate swaps................................. $ -- $ 199 $ -- $ 3,919
Long-term debt -- Senior Credit Facility............ 348,000 348,000 1,573,000 1,573,000
Long-term debt -- Senior Notes...................... 10,000 10,572 -- --
Long-term debt -- 9 3/8% Notes...................... -- -- 200,000 209,000
Long-term debt -- 8 3/4% Notes...................... -- -- 200,000 205,000
Long-term debt -- 10 1/2% Notes..................... -- -- 100,000 110,000
Long-term debt -- 8 1/8% Notes...................... -- -- 500,000 500,000
Redeemable preferred stock -- 12 1/4% Preferred
Stock............................................. -- -- 119,444 133,000
Redeemable preferred stock -- 12% Preferred Stock... -- -- 211,764 239,821
</TABLE>
The following methods and assumptions were used to estimate the fair value
of each class of financial instrument:
Cash and cash equivalents, accounts receivable and accounts
payable: The carrying amount of these assets and liabilities approximates
fair value because of the short maturity of these instruments.
Interest rate swaps: The fair value of the interest rate swap and cap
contracts is estimated by obtaining quotations from brokers. The fair value
is an estimate of the amounts that the Company would (receive) pay at the
reporting date if the contracts were transferred to other parties or
canceled by the broker.
Long-term debt: The fair values of the Company's 9 3/8% Notes, 8 3/4%
Notes, 10 1/2% Notes and 8 1/8% Notes are based on December 31, 1997 quoted
market prices. As amounts outstanding under the Company's Senior Credit
Facility agreements bear interest at current market rates, their carrying
amounts approximate fair market value.
Redeemable preferred stock: The fair values of the Company's 12 1/4%
Preferred Stock and 12% Preferred Stock are based on December 31, 1997
quoted market prices.
(14) RELATED PARTY TRANSACTIONS
As of December 31, 1997, Thomas O. Hicks and affiliates of Hicks Muse
beneficially owned an aggregate 18,727,028 shares of Common Stock of Chancellor
Media. Mr. Hicks was elected Chairman of the Board and a director of the Company
upon consummation of the Chancellor Merger.
The Company is subject to a financial monitoring and oversight agreement,
dated April 1, 1996, as amended on September 4, 1997, (the "Financial Monitoring
and Oversight Agreement") with Hicks, Muse & Co. Partners, L.P. ("Hicks Muse
Partners"), an affiliate of Hicks Muse. Pursuant thereto, the Company pays to
Hicks Muse Partners an annual fee of not less than $1,000 , subject to increase
or decrease (but not below $1,000), based upon changes in the Consumer Price
Index. Hicks Muse Partners is also entitled to reimbursement for any
out-of-pocket expenses incurred in connection with rendering services under the
Financial Monitoring and Oversight Agreement. The Financial Monitoring and
Oversight Agreement provides that the agreement will terminate at such time as
Thomas O. Hicks and his affiliates collectively cease to beneficially own at
least two-thirds of the number of shares of Chancellor Media Common Stock
beneficially owned by them, collectively. The Company paid Hicks Muse Partners
$333 in 1997 pursuant to the Financial
F-29
<PAGE> 212
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Monitoring and Oversight Agreement which is included in corporate general and
administrative expense in the accompanying consolidated statement of operations.
In connection with the consummation of the Chancellor Merger, a Financial
Advisory Agreement among Chancellor, CRBC and HM2/Management Partners, L.P.
("HM2/Management"), an affiliate of Hicks Muse, was terminated. In consideration
thereof, in lieu of any payments required to be made under the Financial
Advisory Agreement in respect of the transactions contemplated by the Chancellor
Merger, HM2/Management was paid a fee of $10,000 in cash upon consummation of
the Chancellor Merger which was accounted for as a direct acquisition cost.
Notwithstanding the termination of the Financial Advisory Agreement, the Company
paid Hicks Muse Partners $1,500 for financial advisory services in connection
with the Katz Acquisition which was accounted for as a direct acquisition cost.
Vernon E. Jordan, Jr., a director of the Company, also serves on the board
of directors of Bankers Trust Company and Bankers Trust New York Corporation.
Affiliates of Bankers Trust Company and Bankers Trust New York Corporation have
provided a variety of commercial banking, investment banking and financial
advisory services to the Company, and expect to continue to provide such
services to the Company in the future.
(15) SEGMENT DATA
The Company operated in two principal business segments -- radio
broadcasting and media representation -- in 1997. The Company's radio
broadcasting segment included a portfolio of 96 stations (68 FM and 28 AM) for
which the Company owned at December 31, 1997 in 21 large markets, including each
of the nation's 12 largest radio revenue markets. The Company entered into the
media representation segment with the acquisition of Katz on October 28, 1997.
Katz is a full-service media representation firm serving multiple types of
electronic media, with leading market share in the representation of radio and
television stations and cable television systems. Katz is retained on an
exclusive basis by radio stations, television stations and cable television
systems in over 200 designated market areas throughout the United States,
including at least one radio or television station in each of the 50 largest
designated market areas, to sell national spot advertising air time. The media
representation segment data for 1997 includes the results of operations of Katz
from the date of acquisition.
<TABLE>
<CAPTION>
DEPRECIATION
NET OPERATING AND IDENTIFIABLE CAPITAL
1997 REVENUES INCOME AMORTIZATION ASSETS EXPENDITURES
---- -------- --------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Radio broadcasting....................... $548,856 $52,219 $182,314 $4,465,526 $11,430
Media representation..................... 33,222 6,187 3,668 495,951 436
-------- ------- -------- ---------- -------
Total.......................... $582,078 $58,406 $185,982 $4,961,477 $11,866
======== ======= ======== ========== =======
</TABLE>
(16) QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
QUARTER ENDED
------------------------------------------------
MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
-------- -------- ------------ -----------
<S> <C> <C> <C> <C>
1996:
Net revenues....................................... $ 53,371 $ 72,991 $ 78,768 $ 88,720
Operating income (loss)............................ (8,223) 7,062 9,351 9,770
Net income (loss) attributable to common stock..... (14,273) (2,222) (793) 1,094
1997:
Net revenues....................................... $ 81,897 $106,364 $145,022 $248,795
Operating income................................... 568 16,968 15,002 25,868
Income (loss) before extraordinary item............ (6,011) 9,870 (3,221) (15,132)
Net income (loss) attributable to common stock..... (6,011) 5,520 (6,000) (25,254)
</TABLE>
F-30
<PAGE> 213
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Chancellor Media Corporation of Los Angeles:
Our report on the consolidated financial statements of Chancellor Media
Corporation of Los Angeles and subsidiaries is included in this Registration
Statement. In connection with our audit of such financial statements, we have
also audited the related financial statement schedule of Chancellor Media
Corporation of Los Angeles and subsidiaries as of and for the year ended
December 31, 1997 included herein.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
February 10, 1998, except for notes 2(b)
paragraphs 1 and 3-5 as to which the date
is February 20, 1998 and 9(a) as to
which the date is March 13, 1998
F-31
<PAGE> 214
SCHEDULE II
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS ADDITIONS
BALANCE AT CHARGED TO CHARGED BALANCE
BEGINNING COSTS AND TO OTHER AT END
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS WRITEOFFS OF PERIOD
----------- ---------- ---------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year ended December 31, 1997...... $ 2,292 5,174 7,049(1) 1,864 $12,651
======= ===== ======= ===== =======
Year ended December 31, 1996...... $ 2,000 2,179 156(1) 2,043 $ 2,292
======= ===== ======= ===== =======
Year ended December 31, 1995...... $ 835 904 1,644(1) 1,383 $ 2,000
======= ===== ======= ===== =======
Deferred tax asset valuation
allowance:
Year ended December 31, 1997...... $ -- -- -- -- $ --
======= ===== ======= ===== =======
Year ended December 31, 1996...... $ -- -- -- -- $ --
======= ===== ======= ===== =======
Year ended December 31, 1995...... $14,458 -- (14,458) -- $ --
======= ===== ======= ===== =======
</TABLE>
- ---------------
(1) Additions (deductions) result from the application of purchase accounting
relating to the BPI Acquisition in 1995, the Pyramid Acquisition in 1996
and the Chancellor Merger, the Viacom Acquisition and the Katz Acquisition
in 1997.
F-32
<PAGE> 215
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1997 1998
------------ -----------
(UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 16,584 $ 14,257
Accounts receivable, less allowance for doubtful accounts
of $12,651 in 1997 and $12,775 in 1998................. 239,869 290,341
Other current assets...................................... 27,208 32,388
---------- ----------
Total current assets.............................. 283,661 336,986
Note receivable from affiliate.............................. -- 150,000
Property and equipment, net................................. 159,797 166,778
Intangible assets, net...................................... 4,404,443 4,503,891
Other assets, net........................................... 113,576 123,941
---------- ----------
$4,961,477 $5,281,596
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable and accrued expenses..................... $ 171,017 $ 160,211
Long-term debt.............................................. 2,573,000 2,278,000
Deferred tax liabilities.................................... 361,640 320,959
Other liabilities........................................... 44,405 53,625
---------- ----------
Total liabilities................................. 3,150,062 2,812,795
---------- ----------
Redeemable preferred stock:
Redeemable senior cumulative exchangeable preferred stock
of subsidiary, par value $.01 per share; 1,000,000
shares authorized, issued and outstanding; liquidation
preference of $121,274 in 1997 and 1998................ 119,445 119,445
Redeemable cumulative exchangeable preferred stock of
subsidiary, par value $.01 per share; 3,600,000 shares
authorized and 2,117,629 shares issued and outstanding;
liquidation preference of $223,519 in 1997............. 211,763 --
Stockholder's equity:
Common stock, $.01 par value. 1,040 shares authorized,
issued and outstanding................................. 1 1
Paid-in capital............................................. 1,637,628 2,581,765
Accumulated deficit......................................... (157,422) (232,410)
---------- ----------
Total stockholder's equity........................ 1,480,207 2,349,356
---------- ----------
$4,961,477 $5,281,596
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements
F-33
<PAGE> 216
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------- --------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1997 1998 1997 1998
-------- -------- -------- ---------
<S> <C> <C> <C> <C>
Gross revenues.................................... $122,365 $363,590 $216,177 $ 626,011
Less agency commissions......................... 16,001 41,880 27,916 70,744
-------- -------- -------- ---------
Net revenues............................ 106,364 321,710 188,261 555,267
Operating expenses:
Operating expenses, excluding depreciation and
amortization................................. 58,178 168,843 111,162 316,862
Depreciation and amortization................... 27,897 101,124 53,912 193,060
Corporate general and administrative............ 3,321 8,276 5,651 15,079
Executive severance charge...................... -- 59,475 -- 59,475
-------- -------- -------- ---------
Operating expenses...................... 89,396 337,718 170,725 584,476
-------- -------- -------- ---------
Operating income (loss)................. 16,968 (16,008) 17,536 (29,209)
-------- -------- -------- ---------
Other (income) expense:
Interest expense, net........................... 14,853 38,785 22,741 87,085
Gain on disposition of representation
contracts.................................... -- (11,270) -- (11,270)
Other income.................................... (13,323) (3,559) (13,323) (3,559)
-------- -------- -------- ---------
Other (income) expense.................. 1,530 23,956 9,418 72,256
-------- -------- -------- ---------
Income (loss) before income taxes and
extraordinary item.................... 15,438 (39,964) 8,118 (101,465)
Income tax expense (benefit)...................... 5,568 (13,987) 4,259 (16,928)
-------- -------- -------- ---------
Income (loss) before extraordinary
item.................................. 9,870 (25,977) 3,859 (84,537)
Extraordinary loss, net of income tax benefit..... 4,350 31,865 4,350 31,865
-------- -------- -------- ---------
Net income (loss)....................... 5,520 (57,842) (491) (116,402)
Preferred stock dividends......................... -- 6,691 -- 16,702
-------- -------- -------- ---------
Net income (loss) attributable to common
stock................................. $ 5,520 $(64,533) $ (491) $(133,104)
======== ======== ======== =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-34
<PAGE> 217
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
----------------------
JUNE 30, JUNE 30,
1997 1998
--------- ----------
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (491) $ (116,402)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation............................................ 5,074 12,177
Amortization of goodwill, intangible assets and other
assets................................................. 48,838 180,883
Executive severance charge -- stock option
compensation........................................... -- 16,000
Provisions for doubtful accounts........................ 2,388 2,194
Deferred income tax expense (benefit)................... 4,259 (16,928)
Gain on disposition of representation contracts......... -- (11,270)
Gain on disposition of assets........................... (13,323) --
Loss on extinguishment of debt.......................... 4,350 31,865
Other................................................... -- (4,275)
Changes in certain assets and liabilities, net of
effects of acquisitions:
Accounts receivable................................... (14,893) (51,352)
Other current assets.................................. (5,102) (7,432)
Accounts payable and accrued expenses................. 4,992 (4,032)
Other assets.......................................... (29) (490)
Other liabilities..................................... 102 6,925
--------- ----------
Net cash provided by operating activities........... 36,165 37,863
--------- ----------
Cash flows from investing activities:
Acquisitions, net of cash acquired........................ (447,240) (266,328)
Assets held for sale...................................... (50,000) --
Escrow deposits on pending acquisitions................... (62,100) --
Payments made on purchases of representation contracts.... -- (15,880)
Proceeds from sale of representation contracts............ -- 9,822
Proceeds from sale of assets.............................. 99,750 --
Issuance of note receivable from affiliate................ -- (150,000)
Capital expenditures...................................... (3,547) (12,099)
Other..................................................... (15,270) (7,647)
--------- ----------
Net cash used by investing activities............... (478,407) (442,132)
--------- ----------
Cash flows from financing activities:
Proceeds from issuance of long-term debt.................. 584,250 445,000
Principal payments on long-term debt...................... (417,250) (740,000)
Cash contributed by parent................................ 288,382 999,088
Repurchase of 12% Exchange Debentures..................... -- (260,519)
Dividends on preferred stock.............................. -- (28,460)
Dividend to parent........................................ (699) (12,831)
Payments for debt issuance costs.......................... (10,430) (336)
Other..................................................... (185) --
--------- ----------
Net cash provided by financing activities........... 444,068 401,942
--------- ----------
Increase (decrease) in cash and cash equivalents............ 1,826 (2,327)
Cash and cash equivalents at beginning of period............ 3,060 16,584
--------- ----------
Cash and cash equivalents at end of period.................. $ 4,886 $ 14,257
========= ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-35
<PAGE> 218
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(DOLLARS IN THOUSANDS)
1. BASIS OF PRESENTATION
In the opinion of management, the accompanying unaudited interim financial
statements contain all adjustments (consisting of normal recurring accruals)
necessary to present fairly the financial position, results of operations and
cash flows of Chancellor Media Corporation of Los Angeles (formerly known as
Evergreen Media Corporation of Los Angeles ("EMCLA")) and its subsidiaries
(collectively, "CMCLA") for the periods presented. Chancellor Media Corporation
of Los Angeles is an indirect, wholly owned subsidiary of Chancellor Media
Corporation ("Chancellor Media").
Interim periods are not necessarily indicative of results to be expected
for the year. It is suggested that these financial statements be read in
conjunction with the consolidated financial statements and the notes thereto
included in CMCLA's Annual Report on Form 10-K for the year ended December 31,
1997.
The consolidated financial statements include the accounts of CMCLA and its
subsidiaries, all of which are wholly-owned. All significant intercompany
balances and transactions have been eliminated in consolidation.
CMCLA adopted SFAS No. 130, Reporting Comprehensive Income, effective
January 1, 1998. This statement requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence as
other financial statements. CMCLA has no items of comprehensive income for any
period presented and therefore is not required to report comprehensive income.
2. ACQUISITIONS AND DISPOSITIONS
1997 Completed Transactions
On January 31, 1997, CMCLA acquired WWWW-FM and WDFN-AM in Detroit from
affiliates of Chancellor Radio Broadcasting Company ("CRBC") for $30,000 in cash
plus various other direct acquisition costs. CMCLA had previously provided
certain sales and promotional functions to WWWW-FM and WDFN-AM under a joint
sales agreement since February 14, 1996 and subsequently operated the stations
under a time brokerage agreement since April 1, 1996.
On January 31, 1997, CMCLA acquired KKSF-FM and KDFC-FM/AM in San Francisco
from affiliates of the Brown Organization for $115,000 in cash plus various
other direct acquisition costs. CMCLA had previously been operating KKSF-FM and
KDFC-FM/AM under a time brokerage agreement since November 1, 1996. On July 21,
1997, CMCLA sold KDFC-FM to Bonneville International Corporation ("Bonneville")
for $50,000 in cash. The assets of KDFC-FM were classified as assets held for
sale in connection with the purchase price allocation of the acquisition of
KKSF-FM and KDFC-FM/AM and no gain or loss was recognized by CMCLA upon
consummation of the sale.
On April 1, 1997, CMCLA acquired WJLB-FM and WMXD-FM in Detroit from Secret
Communications, L.P. ("Secret") for $168,000 in cash plus various other direct
acquisition costs. CMCLA had previously been operating WJLB-FM and WMXD-FM under
time brokerage agreements since September 1, 1996.
On April 3, 1997, CMCLA exchanged WQRS-FM in Detroit (which CMCLA acquired
on April 3, 1997 from Secret for $32,000 in cash plus various other direct
acquisition costs), to affiliates of Greater Media Radio, Inc. ("Greater Media")
in return for WWRC-AM in Washington, D.C. (now known as WTEM-AM) and $9,500 in
cash. The exchange was accounted for as a like-kind exchange and no gain or loss
was recognized upon consummation of the transaction. The net purchase price to
CMCLA of WWRC-AM was therefore $22,500. CMCLA had previously been operating
WWRC-AM under a time brokerage agreement since June 17, 1996.
F-36
<PAGE> 219
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
On May 1, 1997, CMCLA acquired WDAS-FM/AM in Philadelphia from affiliates
of Beasley FM Acquisition Corporation for $103,000 in cash plus various other
direct acquisition costs.
On May 15, 1997, CMCLA exchanged five of its six stations in Charlotte,
North Carolina (WPEG-FM, WBAV-FM/AM, WRFX-FM and WFNZ-AM) for two FM stations in
Philadelphia (WIOQ-FM and WUSL-FM) owned by EZ Communications, Inc. ("EZ") in
Philadelphia (the "Charlotte Exchange"), and also sold CMCLA's sixth radio
station in Charlotte, WNKS-FM, to EZ for $10,000 in cash and recognized a gain
of $3,536. The Charlotte Exchange was accounted for as a like-kind exchange and
no gain or loss was recognized upon consummation of the transaction.
On May 30, 1997, CMCLA acquired WPNT-FM in Chicago from affiliates of
Century Broadcasting Company for $75,740 in cash (including $1,990 for the
purchase of the station's accounts receivable) plus various other direct
acquisition costs. On June 19, 1997, CMCLA sold WPNT-FM in Chicago to Bonneville
for $75,000 in cash and recognized a gain of $529.
On June 3, 1997, CMCLA sold WEJM-FM in Chicago to affiliates of Crawford
Broadcasting for $14,750 in cash and recognized a gain of $9,258.
On July 2, 1997, CMCLA acquired WLTW-FM and WAXQ-FM in New York and
WMZQ-FM, WJZW-FM, WZHF-AM and WBZS-AM in Washington, D.C. from Viacom
International, Inc. ("Viacom") for approximately $612,388 in cash including
various other direct acquisition costs (the "Viacom Acquisition"). The Viacom
Acquisition was financed with (i) bank borrowings under the Senior Credit
Facility (as defined) of $552,559; (ii) $53,750 in escrow funds paid by CMCLA on
February 19, 1997 and (iii) $6,079 financed through working capital. In June
1997, Chancellor Media issued 5,990,000 shares of $3.00 Convertible Preferred
Stock for net proceeds of $287,808 which were contributed to CMCLA and used to
repay borrowings under the Senior Credit Facility and subsequently were
reborrowed on July 2, 1997 as part of the financing of the Viacom Acquisition.
On July 7, 1997, CMCLA sold WJZW-FM in Washington, D.C. to affiliates of Capital
Cities/ABC Radio for $68,000 in cash. The assets of WJZW-FM, as well as the
assets of WZHF-AM and WBZS-AM, which were also sold on August 13, 1997, were
accounted for as assets held for sale in connection with the purchase price
allocation of the Viacom Acquisition and no gain or loss was recognized by CMCLA
upon consummation of the sales.
On July 7, 1997, CMCLA sold the Federal Communications Commission ("FCC")
authorizations and certain transmission equipment previously used in the
operation of KYLD-FM in San Francisco to Susquehanna Radio Corporation
("Susquehanna") for $44,000 in cash and recognized a gain of $1,726.
Simultaneously therewith, CRBC sold the call letters "KSAN-FM" (which CRBC
previously used in San Francisco) to Susquehanna. On July 7, 1997, CMCLA and
CRBC entered into a time brokerage agreement to enable CMCLA to operate KYLD-FM
on the frequency previously assigned to KSAN-FM, and on July 7, 1997, CRBC
changed the call letters of KSAN-FM to KYLD-FM. Upon the consummation of the
Chancellor Merger (as defined herein), CMCLA changed the format of the new
KYLD-FM to the format previously operated on the old KYLD-FM.
On July 14, 1997, CMCLA completed the disposition of WLUP-FM in Chicago to
Bonneville for net proceeds of $80,000 which were held by a qualified
intermediary pending the completion of the deferred exchange of WLUP-FM for
KZPS-FM and KDGE-FM in Dallas. On October 7, 1997, CMCLA applied the net
proceeds from the disposition of WLUP-FM of $80,000 in cash, plus an additional
$3,500 and various other direct acquisition costs, in a deferred exchange of
WLUP-FM for KZPS-FM and KDGE-FM in Dallas. The exchange was accounted for as a
like-kind exchange and no gain or loss was recognized upon consummation of the
transaction. CMCLA had previously operated KZPS-FM and KDGE-FM under time
brokerage agreements effective August 1, 1997.
On July 21, 1997, CMCLA entered into a time brokerage agreement with CRBC
whereby CMCLA began managing certain limited functions of CRBC's stations
KBGG-FM, KNEW-AM and KABL-FM in
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CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
San Francisco pending the consummation of the Chancellor Merger (as defined
herein), which occurred on September 5, 1997.
On August 13, 1997, CMCLA sold WBZS-AM and WZHF-AM in Washington, D.C.
(acquired as part of the Viacom Acquisition) and KDFC-AM in San Francisco to
affiliates of Douglas Broadcasting ("Douglas") for $18,000 in the form of a
promissory note. The promissory note, as amended on May 1, 1998, bears interest
at 7 3/4% from the closing date through February 28, 1998 and at 10.0% from
March 1, 1998 through the remainder of the term of the note, with a balloon
principal payment due four years after closing. At closing, Douglas posted a
$1,000 letter of credit for the benefit of CMCLA that will remain outstanding
until all amounts due under the promissory note are paid.
On August 27, 1997, CMCLA sold WEJM-AM in Chicago to Douglas for $7,500 in
cash and recognized a gain of $3,331.
On September 5, 1997, pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of February 19, 1997 and amended and restated on July
31, 1997 (the "Chancellor Merger Agreement"), among Chancellor Broadcasting
Company ("Chancellor"), CRBC, Evergreen Media Corporation ("Evergreen"),
Evergreen Mezzanine Holdings Corporation ("EMHC") and EMCLA, (i) Chancellor was
merged (the "Parent Merger") with and into EMHC, a direct, wholly-owned
subsidiary of Evergreen, with EMHC remaining as the surviving corporation and
(ii) CRBC was merged (the "Subsidiary Merger") with and into EMCLA, a direct,
wholly-owned subsidiary of EMHC, with EMCLA remaining as the surviving
corporation (collectively, the "Chancellor Merger"). Upon consummation of the
Parent Merger, Evergreen was renamed Chancellor Media Corporation and EMHC was
renamed Chancellor Mezzanine Holdings Corporation ("CMHC"). Upon consummation of
the Subsidiary Merger, EMCLA was renamed Chancellor Media Corporation of Los
Angeles ("CMCLA"). Consummation of the Chancellor Merger added 52 radio stations
(36 FM and 16 AM) to CMCLA's portfolio of stations, including 13 stations in
markets in which CMCLA previously operated. The total purchase price allocated
to net assets acquired was approximately $1,998,383 which included (i) the
conversion of each outstanding share of Chancellor Common Stock into 0.9091
shares of Chancellor Media's Common Stock, resulting in the issuance of
34,617,460 shares of Chancellor Media's Common Stock at $15.50 per share, (ii)
the assumption of long-term debt of CRBC of $949,000 which included $549,000 of
borrowings outstanding under the CRBC senior credit facility, $200,000 of CRBC's
9 3/8% Senior Subordinated Notes due 2004 and $200,000 of CRBC's 8 3/4% Senior
Subordinated Notes due 2007, (iii) the issuance of 2,117,629 shares of CMCLA's
12% Exchangeable Preferred Stock in exchange for CRBC's substantially identical
securities with a fair value of $215,570 including accrued and unpaid dividends
of $3,807, (iv) the issuance of 1,000,000 shares of CMCLA's 12 1/4% Series A
Senior Cumulative Exchangeable Preferred Stock in exchange for CRBC's
substantially identical securities with a fair value of $120,217 including
accrued and unpaid dividends of $772, (v) the issuance of 2,200,000 shares of
Chancellor Media's 7% Convertible Preferred Stock in exchange for Chancellor's
substantially identical securities with a fair value of $111,048 including
accrued and unpaid dividends of $1,048, (vi) the assumption of stock options
issued to Chancellor stock option holders with a fair value of $34,977 and (vii)
estimated acquisition costs of $31,000.
On October 28, 1997, Chancellor Media and CMCLA acquired Katz Media Group,
Inc. ("KMG"), a full-service media representation firm, in a tender offer
transaction for a total purchase price of approximately $379,101 (the "Katz
Acquisition") which included (i) the conversion of each outstanding share of KMG
Common Stock into the right to receive $11.00 in cash, resulting in total cash
payments of $149,601, (ii) the assumption of long-term debt of KMG and its
subsidiaries of $222,000 which included $122,000 of borrowings outstanding under
the KMG senior credit facility and $100,000 of 10 1/2% Senior Subordinated Notes
due 2007 of Katz Media Corporation (a subsidiary of KMG) and (iii) estimated
acquisition costs of $7,500.
On December 29, 1997, CMCLA acquired five radio stations from Pacific and
Southern Company, Inc., a subsidiary of Gannett Co., Inc., consisting of
WGCI-FM/AM in Chicago for $140,000, KKBQ-FM/AM in
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<PAGE> 221
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
Houston for $110,000 and KHKS-FM in Dallas for $90,000, for an aggregate
purchase price of $340,000 in cash plus various other direct acquisition costs.
1998 Completed Transactions
On January 30, 1998, CMCLA acquired KXPK-FM in Denver from Ever Green
Wireless LLC (which is unrelated to CMCLA) for $26,000 in cash plus various
other direct acquisition costs, of which $1,650 was previously paid by CRBC as
escrow funds and are classified as other assets at December 31, 1997. CMCLA had
previously operated KXPK-FM under a time brokerage agreement since September 1,
1997.
On April 3, 1998, CMCLA exchanged WTOP-AM in Washington, KZLA-FM in Los
Angeles and WGMS-FM in Washington plus $63,000 in cash (including $3,000 paid by
CMCLA in escrow and classified as other assets at December 31, 1997) to
Bonneville for WBIX-FM in New York, KLDE-FM in Houston and KBIG-FM in Los
Angeles (the "Bonneville Exchange"). CMCLA had previously operated KLDE-FM and
KBIG-FM under time brokerage agreements since October 1, 1997 and WBIX-FM since
October 10, 1997, and had sold substantially all of the broadcast time of
WTOP-AM, KZLA-FM and WGMS-FM to Bonneville since October 1, 1997.
On April 13, 1998, CMCLA and Secret entered into a settlement agreement
regarding WFLN-FM in Philadelphia. Previously in August 1996, CMCLA and Secret
had entered into an agreement under which CMCLA would acquire WFLN-FM from
Secret for $37,750 in cash. In April 1997, CMCLA entered into an agreement to
sell WFLN-FM to Greater Media for $41,800 in cash. On July 16, 1997, Secret
purported to terminate the sale of WFLN-FM to CMCLA. CMCLA subsequently brought
suit against Secret to enforce its rights to acquire WFLN-FM. Pursuant to a
court settlement entered in August 1997 and the settlement agreement between
CMCLA and Secret entered on April 13, 1998, (i) Secret sold WFLN-FM directly to
Greater Media for $37,750, (ii) Greater Media deposited $4,050 (the difference
between CMCLA's proposed acquisition price for WFLN-FM from Secret and CMCLA's
proposed sale price for WFLN-FM to Greater Media) with the court and (iii) CMCLA
received $3,500 of such amount deposited by Greater Media with the court, plus
interest earned during the period which the court held such amounts (the "WFLN
Settlement"), and Secret received the balance of such amounts.
On May 29, 1998, as part of the Capstar Transaction (defined below), CMCLA
exchanged WAPE-FM and WFYV-FM in Jacksonville (valued for purposes of the
Capstar Transaction at $53,000) plus $90,250 in cash to Capstar Broadcasting
Corporation (together with its subsidiaries, "Capstar") in return for KODA-FM in
Houston (the "Houston Exchange"). Furthermore, on May 29, 1998, Capstar sold
KKPN-FM in Houston (acquired by Capstar as part of the SFX Acquisition) due to
the attributable ownership of Hicks, Muse, Tate & Furst, Incorporated ("Hicks
Muse") in both Capstar and CMCLA in order to comply with the FCC's multiple
ownership limits. In connection with Capstar's sale of KKPN-FM, CMCLA received a
commission from Capstar of $1,730. On May 29, 1998, CMCLA also provided a loan
to Capstar in the principal amount of $150,000 (the "Capstar Loan") as part of
the Capstar Transaction. The Capstar Loan bears interest at the rate of 12% per
annum (subject to increase in certain circumstances), and is secured by a senior
pledge of common stock of Capstar's direct subsidiary. A portion of the Capstar
Loan will be prepaid by Capstar in connection with CMCLA's acquisition of, and
the proceeds of such prepayment would be used by CMCLA as a portion of the
purchase price for, each Capstar Station. Hicks Muse, which is a substantial
shareholder of CMCLA, controls Capstar, and certain officers and directors of
CMCLA are directors and/or executive officers of Capstar and/or Hicks Muse.
On June 1, 1998, CMCLA acquired WWDC-FM/AM in Washington, D.C. from Capitol
Broadcasting Company and its affiliates for $74,062 in cash (including $2,062
for the purchase of the stations' accounts receivable) plus various other direct
acquisition costs, of which $4,000 was previously paid by CMCLA as escrow funds
and are classified as other assets at December 31, 1997 (the "Capitol
Broadcasting Acquisition").
F-39
<PAGE> 222
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
On May 1, 1998, the Company formed a new division, Chancellor Marketing
Group, in an effort to enhance the revenues CMCLA derives from its sales
promotion activities. On June 1, 1998, CMCLA acquired Global Sales Development,
Inc., a consulting firm based in Richmond, Virginia, for $675 in cash plus
various other direct acquisition costs to lead its marketing efforts for this
new division.
On June 15, 1998, CMCLA's national radio network, The AMFM Radio Networks,
acquired the syndicated programming shows of Global Satellite Network for
$14,000 in cash plus various other direct acquisition costs. The syndicated
programming shows acquired include "Rockline", "Modern Rock Live", "Reelin' in
the Years" and the concert series "Live from the Pit".
On July 31, 1998, CMCLA acquired Martin Media, L.P. and certain affiliated
companies ("Martin"), an outdoor advertising company with over 13,000 billboards
and outdoor displays in 12 states serving 23 markets, for $610,000 in cash plus
working capital of $20,985 subject to certain adjustments and various other
direct acquisition costs. Additionally, CMCLA paid $13,559 to Martin for
properties acquired by Martin subsequent to the purchase agreement date of June
22, 1998 and prior to the closing on July 31, 1998. The additional properties
acquired from Martin added approximately 1,500 billboards and outdoor displays
in four of Martin's 23 existing markets.
Pending Transactions
On February 20, 1998, CMCLA entered into an agreement to acquire from
Capstar KTXQ-FM and KBFB-FM in Dallas/Ft. Worth, KODA-FM, KKRW-FM and KQUE-AM in
Houston, KPLN-FM and KYXY-FM in San Diego and WDRV-FM, WJJJ-FM, WXDX-FM and
WDVE-FM in Pittsburgh (collectively, the "Capstar Stations") for an aggregate
purchase price of approximately $637,500 in a series of purchases and exchanges
over a period of three years (the "Capstar Transaction"). On May 29, 1998, CMCLA
completed the Houston Exchange (defined above) and began operating the remaining
ten Capstar Stations under time brokerage agreements. CMCLA will pay
approximately $494,250 for the remaining ten Capstar Stations.
On April 8, 1998, CMCLA entered into an agreement to acquire Petry Media
Corporation, a leading independent television representation firm, for
approximately $150,000 in cash (the "Petry Acquisition"). On June 3, 1998, the
Antitrust Division of the United States Department of Justice issued a second
request for additional information under the HSR Act in connection with the
Petry Acquisition. The Company is presently responding to this request for
additional information. Although there can be no assurance, CMCLA expects that
the Petry Acquisition will be consummated in the fourth quarter of 1998.
On June 15, 1998, CMCLA, Capstar, LIN Television Corporation and TSG
Capital Group, L.L.C. announced the formation of an alliance to capitalize on
investment opportunities in broadcasting entities across a broad spectrum of
ethnic ownership. Accordingly, as the first investment of the alliance, CMCLA
entered into an agreement to acquire a 20% non-voting equity stake in Z-Spanish
Media Corporation for approximately $25,000 in cash (the "Z Spanish
Acquisition"). Z Spanish Media, which is headquartered in Sacramento,
California, is the owner and operator of 22 Hispanic format radio stations in
California, Texas, Arizona and Illinois. Although there can be no assurance,
CMCLA expects that the Z Spanish Acquisition will be consummated in the third or
fourth quarter of 1998.
On July 7, 1998, Chancellor Media entered into an agreement whereby the
ultimate parent of LIN Television Corporation ("LIN") will merge into Chancellor
Media (the "LIN Merger"). Pursuant to this agreement, Chancellor Media will
acquire the stock of LIN from affiliates of Hicks Muse in a stock-for-stock
transaction. Upon consummation of the LIN Merger, it is expected that LIN will
own or operate 12 television stations in eight markets in the United States.
Although there can be no assurance, Chancellor Media expects that the LIN Merger
will be consummated in the first quarter of 1999.
F-40
<PAGE> 223
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
On July 10, 1998, Chancellor Media and CMCLA entered into an agreement to
acquire a 50% economic interest in Grupo Radio Centro, S.A. de C.V. ("GRC") for
approximately $120,500 in cash and $116,500 in Common Stock for an aggregate
purchase price of $237,000 (the "GRC Acquisition"). The Chancellor Media shares
issued to GRC will be valued at the market price at closing, subject to a
maximum price of $57.00 and a minimum price of $42.75. The purchase price is
subject to upward or downward revisions of up to $29,100, payable in Chancellor
Media Common Stock, based upon GRC's 1999 performance. GRC is Latin America's
largest pure play radio company with six FM and six AM radio stations in Mexico.
Additionally, GRC acts as the national sales representative and provides
programming for a network of more than 90 radio station affiliates in 57 cities
throughout Mexico. Although there can be no assurance, CMCLA expects that the
GRC Acquisition will be consummated in the fourth quarter of 1998.
On July 27, 1998, CMCLA entered into an agreement to acquire Primedia
Broadcast Group, Inc. and certain of its affiliates, which own and operate eight
FM stations in Puerto Rico, for approximately $75,000 in cash (the "Primedia
Acquisition"). Although there can be no assurance, CMCLA expects that the
Primedia Acquisition will be consummated in the fourth quarter of 1998.
On August 11, 1998, CMCLA entered into agreements to acquire four FM and
two AM radio stations in Cleveland for an aggregate purchase price of
approximately $275,000 in cash plus various other direct acquisitions cost (the
"Cleveland Acquisitions"). The Cleveland Acquisitions consist of the purchase by
CMCLA of (i) WDOK-FM and WRMR-AM from Independent Group Limited Partnership,
(ii) WZAK-FM from Zapis Communications, (iii) Zebra Broadcasting Corporation
which owns WZJM-FM and WJMO-AM and (iv) Wincom Broadcasting Corporation which
owns WQAL-FM (the "Wincom Acquisition"). The consummation of each of the
Cleveland Acquisitions (other than the Wincom Acquisition) is contingent upon
the consummation of each of the other Cleveland Acquisitions (other than the
Wincom Acquisition). Although there can be no assurance, CMCLA expects that the
Cleveland Acquisitions will be consummated in the first quarter of 1999.
Consummation of each of the transactions discussed above is subject to
various conditions, including approval from the FCC (except in the case of the
Petry Acquisition) and the expiration or early termination of any waiting period
required under the HSR Act. CMCLA believes that such conditions will be
satisfied in the ordinary course, but there can be no assurance that this will
be the case.
Escrow funds of $4,650 paid by CMCLA in connection with the Bonneville
Exchange and the Capitol Broadcasting Acquisition were classified as other
assets in the accompanying balance sheet at December 31, 1997.
Summary of Net Assets Acquired
The completed acquisitions discussed above were accounted for as purchases.
Accordingly, the accompanying consolidated financial statements include the
results of operations of the acquired entities from the dates of acquisition.
F-41
<PAGE> 224
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
A summary of the net assets acquired follows:
<TABLE>
<CAPTION>
YEAR SIX MONTHS
ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Working capital, including cash of $9,724 in 1997........... $ 66,805 $ 1,991
Property and equipment...................................... 118,371 7,062
Assets held for sale........................................ 131,000 --
Intangible assets........................................... 3,823,746 259,631
Other assets................................................ 26,742 --
Deferred tax liability...................................... (279,371) --
Other liabilities........................................... (39,681) (697)
---------- --------
$3,847,612 $267,987
========== ========
</TABLE>
The pro forma consolidated condensed results of operations data for the six
months ended June 30, 1997 and 1998, as if the 1997 Completed Transactions and
the 1998 Completed Transactions discussed above, the 8 1/8% Notes Offering, the
amendment and restatement of the Senior Credit Facility and the 1998 Completed
Financing Transactions (as defined herein) occurred at January 1, 1997, follow:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------
JUNE 30, JUNE 30,
1997 1998
-------- --------
<S> <C> <C>
Net revenues................................................ $506,102 $580,634
Net loss.................................................... (82,320) (101,744)
</TABLE>
The results of operations for the six months ended June 30, 1998 include a
one-time executive severance charge of $59,475.
The pro forma results are not necessarily indicative of what would have
occurred if the acquisitions had been in effect for the entire periods
presented.
3. FINANCING TRANSACTIONS
1998 Completed Financing Transactions
On March 13, 1998, Chancellor Media completed a secondary offering of
21,850,000 shares of its Common Stock (the "1998 Equity Offering"). The net
proceeds from the 1998 Equity Offering of approximately $994,642 were
contributed to CMCLA and were used to reduce bank borrowings under the revolving
credit portion of the Senior Credit Facility (as defined) and the excess
proceeds were initially invested in short-term investment grade securities. The
Company subsequently used the excess proceeds for general corporate purposes,
including the financing of the Bonneville Exchange, the Capstar Loan and a
portion of the Houston Exchange.
On May 8, 1998, CMCLA completed a consent solicitation (the "12% Consent
Solicitation") to modify certain timing restrictions on CMCLA's ability to
exchange all shares of its 12% Preferred Stock for its 12% Subordinated Exchange
Debentures due 2009 (the "12% Debentures"). Consenting holders of 12% Preferred
Stock received payments of $0.05 per share of 12% Preferred Stock. On May 13,
1998, CMCLA exchanged the shares of 12% Preferred Stock for 12% Debentures (the
"12% Exchange"). In connection with the 12% Consent Solicitation and 12%
Exchange, CMCLA incurred approximately $270 in transaction costs which were
recorded as deferred debt issuance costs.
On June 10, 1998, CMCLA completed a cash tender offer (the "12% Debentures
Tender Offer") for all of CMCLA's 12% Debentures for an aggregate repurchase
cost of $262,495 which included (i) the principal amount of the 12% Debentures
of $211,763, (ii) premiums on the repurchase of the 12% Debentures of $47,798,
(iii) accrued and unpaid interest on the 12% Debentures from May 14, 1998
through June 10, 1998
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<PAGE> 225
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
of $1,976 and (iv) estimated transaction costs of $958. In connection with the
12% Debentures Tender Offer, CMCLA recorded an extraordinary charge of $31,865
(net of a tax benefit of $17,158) consisting of the premiums, estimated
transaction costs and the write-off of the unamortized balance of deferred debt
issuance costs.
On July 20, 1998, CMCLA completed a consent solicitation (the "12 1/4%
Preferred Stock Consent Solicitation") to modify certain timing restrictions on
CMCLA's ability to exchange all shares of its 12 1/4% Preferred Stock for its
12 1/4% Subordinated Exchange Debentures due 2008 (the "12 1/4% Debentures"),
and on July 23, 1998 CMCLA exchanged the shares of 12 1/4% Preferred Stock for
12 1/4% Debentures. Consenting holders of 12 1/4% Preferred Stock received
payments of $0.05 per share of 12 1/4 Preferred Stock.
Pending Financing Transactions
On August 6, 1998, CMCLA commenced a cash tender offer (the "Tender Offer")
for CMCLA's 12 1/4% Debentures. The offer price for each $1,000 principal amount
of 12 1/4% Debentures is $1,189.90 plus accrued and unpaid interest through the
expiration date. The Tender Offer will expire at 11:59 p.m. on August 19, 1998,
unless extended. There can be no assurance that the Tender Offer will be
successful.
4. LONG-TERM DEBT
Long-term debt consists of the following at December 31, 1997 and June 30,
1998:
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Senior Credit Facility(a)................................... $1,573,000 $1,278,000
9 3/8% Notes(b)............................................. 200,000 200,000
8 3/4% Notes(b)............................................. 200,000 200,000
10 1/2% Notes(b)............................................ 100,000 100,000
8 1/8% Notes(b)............................................. 500,000 500,000
---------- ----------
Total long-term debt.............................. $2,573,000 $2,278,000
========== ==========
</TABLE>
(a) Senior Credit Facility
On April 25, 1997, CMCLA entered into a loan agreement which amended and
restated its prior senior credit facility. Under the amended and restated
agreement, as amended on June 26, 1997, August 7, 1997, October 28, 1997,
February 10, 1998, May 1, 1998 and July 31, 1998 (as amended, the "Senior Credit
Facility"), CMCLA established a $1,250,000 revolving facility (the "Revolving
Loan Facility") and a $500,000 term loan facility (the "Term Loan Facility").
Upon consummation of the Chancellor Merger, the aggregate commitments under the
Revolving Loan Facility and the Term Loan Facility were increased to $1,600,000
and $900,000, respectively. In connection with the amendment and restatement of
the Senior Credit Facility, CMCLA wrote off the unamortized balance of deferred
debt issuance costs of $4,350 (net of a tax benefit of $2,343) as an
extraordinary charge.
Borrowings under the Senior Credit Facility bear interest at a rate based,
at the option of CMCLA, on the participating banks' prime rate or Eurodollar
rate, plus an incremental rate. Without giving effect to the interest rate swap
and cap agreements described below, the interest rate on the $900,000
outstanding under the Term Loan Facility at June 30, 1998 was 6.19% on a blended
basis, based on Eurodollar rates, and the interest rate on advances of $365,000
and $13,000 outstanding under the Revolving Loan Facility were 6.19% and 8.50%,
respectively, at June 30, 1998, based on the Eurodollar and prime rates,
respectively. CMCLA pays fees ranging from 0.25% to 0.375% per annum on the
aggregate unused portion of the loan commitment based upon the leverage ratio
for the most recent quarter end, in addition to an annual agent's fee. Pursuant
to the Senior Credit Facility, CMCLA is required to enter into interest hedging
agreements that result in the
F-43
<PAGE> 226
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
fixing or placing a cap on CMCLA's floating rate debt so that not less than 50%
of the principal amount of total debt outstanding has a fixed or capped rate.
The Term Loan Facility is payable in quarterly installments commencing on
September 30, 2000 and ending June 20, 2005. The Revolving Loan Facility
requires scheduled annual reductions of the commitment amount, payable in
quarterly installments commencing on September 30, 2000 and ending on June 30,
2005. At July 31, 1998, CMCLA had drawn $900,000 of the Term Loan Facility and
$980,000 of the Revolving Loan Facility. The capital stock of CMCLA's
subsidiaries is pledged to secure the performance of CMCLA's obligations under
the Senior Credit Facility, and each of CMCLA's subsidiaries have guaranteed
those obligations.
(b) Senior Subordinated Notes
Upon consummation of the Chancellor Merger, on September 5, 1997, CMCLA
assumed all of the obligations under CRBC's $200,000 aggregate principal amount
9 3/8% Senior Subordinated Notes due 2004 (the "9 3/8% Notes") and the indenture
governing such securities, and assumed all of the obligations under CRBC's
$200,000 aggregate principal amount 8 3/4% Senior Subordinated Notes due 2007
(the "8 3/4% Notes") and the indenture governing such securities. Upon
consummation of the Katz Acquisition, on October 28, 1997, CMCLA assumed all of
the obligations under Katz Media Corporation's $100,000 aggregate principal
amount of 10 1/2% Senior Subordinated Notes due 2007 (the "10 1/2% Notes") and
the amended and restated indenture governing such securities. On December 22,
1997, CMCLA issued $500,000 aggregate principal amount of 8 1/8% Senior
Subordinated Notes due 2007 (the "8 1/8% Notes") for estimated net proceeds of
$485,000.
(c) Summarized Financial Information of Subsidiary Guarantors
The 9 3/8% Notes, the 8 3/4% Notes, the 10 1/2% Notes and the 8 1/8% Notes
(collectively, the "Notes") are unsecured obligations of CMCLA, subordinated in
right of payment to all existing and any future senior indebtedness of CMCLA.
The Notes are fully and unconditionally guaranteed, on a joint and several
basis, by all of CMCLA's direct and indirect subsidiaries other than certain
inconsequential subsidiaries (the "Subsidiary Guarantors"). The Subsidiary
Guarantors are wholly-owned subsidiaries of CMCLA. Summarized financial
information of the Subsidiary Guarantors as of December 31, 1997 and June 30,
1998 and for the six months ended June 30, 1998 is presented below. Separate
financial statements and other disclosures concerning the Subsidiary Guarantors
are not presented because management has determined that they are not material
to investors. There are no significant restrictions on distributions from each
of the Subsidiary Guarantors to CMCLA.
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1997 1998
------------ ----------
<S> <C> <C>
Current assets.............................................. $ 223,913 $ 275,671
Noncurrent assets........................................... 987,028 916,846
Current liabilities......................................... 89,362 100,418
Noncurrent liabilities...................................... 1,130,105 1,126,345
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30,
1998
----------
<S> <C>
Net revenues................................................ $ 452,427
Operating income............................................ 32,717
Net loss.................................................... (30,934)
</TABLE>
F-44
<PAGE> 227
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
(d) Other
The Senior Credit Facility and the indentures governing the Notes contain
customary restrictive covenants, which, among other things and with certain
exceptions, limit the ability of CMCLA and its subsidiaries to incur additional
indebtedness and liens in connection therewith, enter into certain transactions
with affiliates, pay dividends, consolidate, merge or effect certain asset
sales, issue additional stock, effect an asset swap and make acquisitions. CMCLA
is required under the Senior Credit Facility to maintain specified financial
rations, including leverage, cash flow and debt service coverage ratios (as
defined).
5. EXECUTIVE SEVERANCE CHARGE
On April 14, 1998, Scott K. Ginsburg resigned as President and Chief
Executive Officer of Chancellor Media, CMHC and CMCLA. On April 20, 1998, Mr.
Ginsburg resigned as director of Chancellor Media, CMHC and CMCLA and from all
appointments and positions with its respective subsidiaries. On April 20, 1998,
Mr. Ginsburg and Chancellor Media and CMCLA entered into a separation and
consulting agreement. Following Mr. Ginsburg's resignation, Chancellor Media and
CMCLA entered into new employment agreements with Jimmy de Castro, Chancellor
Media's and CMCLA's Chief Operating Officer, and Matthew E. Devine, Chancellor
Media's and CMCLA's Chief Financial Officer, each effective April 17, 1998. On
April 29, 1998, Jeffrey A. Marcus, was named President and Chief Executive
Officer of Chancellor Media, CMHC and CMCLA and Chancellor Media and CMCLA
entered into an employment agreement with Mr. Marcus effective June 1, 1998.
In connection with Mr. Ginsburg's resignation described above, CMCLA
incurred a one-time executive severance charge of $59,475 which consists of (i)
a lump sum severance payment of $20,000 to Mr. Ginsburg, (ii) compensation
expense of $16,000 related to the grant of 800,000 stock options to Mr. Ginsburg
at an exercise price of $23.25 per share, (iii) consulting fees of $12,500 to be
paid to Mr. Ginsburg over five years, (iv) one-time cash payments of $5,000 and
$2,000 to Mr. de Castro and Mr. Devine, respectively, (v) execution bonuses of
$1,000 paid to Mr. de Castro, Mr. Devine and Mr. Marcus and (vi) other costs
incurred in connection with Mr. Ginsburg's resignation of $975.
6. OTHER INCOME
Other income consists of the following for the six months ended June 30,
1997 and 1998:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------
JUNE 30, JUNE 30,
1997 1998
-------- --------
<S> <C> <C>
Gain on disposition of assets(a)............................ $13,323 $ --
WFLN Settlement(b).......................................... -- 3,559
------- ------
$13,323 $3,559
======= ======
</TABLE>
- ---------------
(a) For the six months ended June 30, 1997, CMCLA recorded a gain on
disposition of assets of $13,323 related to the dispositions of WNKS-FM in
Charlotte on May 15, 1997 ($3,536), WPNT-FM in Chicago on May 30, 1997
($529), and WEJM-FM in Chicago on June 3, 1997 ($9,258).
(b) For the six months ended June 30, 1998, CMCLA recorded a gain from the WFLN
Settlement (defined above) of $3,559.
7. CONTINGENCIES
CMCLA is involved in several lawsuits that are incidental to its business.
A discussion of certain of these lawsuits is contained in "Legal Proceedings",
elsewhere herein. CMCLA believes that the ultimate resolution of the lawsuits
will not have a material effect on its financial position or results of
operations.
F-45
<PAGE> 228
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Chancellor Radio Broadcasting Company:
We have audited the accompanying consolidated balance sheets of Chancellor
Radio Broadcasting Company and Subsidiaries (collectively the "Company") as of
December 31, 1995 and 1996 and the related consolidated statements of
operations, changes in common stockholder's equity, and cash flows for each of
the three years in the period ended December 31, 1996. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
the Company as of December 31, 1995 and 1996 and the consolidated results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
February 13, 1997,
except for Note 15 as
to which the date is
February 19, 1997
F-46
<PAGE> 229
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1995 1996
------------ ------------
<S> <C> <C>
Current assets:
Cash...................................................... $ 1,314,214 $ 3,788,546
Accounts receivable, net of allowance for doubtful
accounts of $263,528 and $1,023,660, respectively...... 13,243,292 46,584,705
Prepaid expenses and other................................ 546,405 2,753,731
------------ ------------
Total current assets.............................. 15,103,911 53,126,982
Restricted cash........................................... -- 20,363,329
Property and equipment, net............................... 17,925,845 49,122,932
Intangibles and other, net................................ 203,808,395 551,406,094
Deferred financing costs, net............................. 4,284,413 16,723,346
------------ ------------
Total assets...................................... $241,122,564 $690,742,683
============ ============
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable.......................................... $ 1,873,888 $ 4,409,389
Accrued liabilities....................................... 4,692,948 12,529,831
Accrued interest.......................................... 2,710,891 6,868,839
Current portion of long-term debt......................... 4,062,500 400,000
------------ ------------
Total current liabilities......................... 13,340,227 24,208,059
Long-term debt............................................ 168,107,242 354,913,499
Deferred income taxes..................................... 4,952,361 2,606,314
Other..................................................... -- 801,572
------------ ------------
Total liabilities................................. 186,399,830 382,529,444
------------ ------------
Commitments (Note 11)
Redeemable senior cumulative exchangeable preferred stock,
par value $.01 per share; 1,000,000 shares authorized,
none and 1,000,000 shares issued and outstanding,
respectively; preference in liquidation of $109,110,301... -- 107,222,416
Common stockholder's equity:
Common stock, par value $.01 per share; 2,000 shares
authorized, 1,000 shares issued and outstanding,
respectively........................................... 10 10
Additional paid-in capital................................ 66,359,990 219,520,102
Accumulated deficit....................................... (11,637,266) (18,529,289)
------------ ------------
Total common stockholder's equity................. 54,722,734 200,990,823
------------ ------------
Total liabilities and stockholder's equity........ $241,122,564 $690,742,683
============ ============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-47
<PAGE> 230
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1994 1995 1996
----------- ------------ ------------
<S> <C> <C> <C>
Gross broadcasting revenues............. $30,080,829 $ 73,278,860 $203,188,125
Less agency commissions................. 3,763,734 8,956,717 24,786,594
----------- ------------ ------------
Net revenues.................. 26,317,095 64,322,143 178,401,531
----------- ------------ ------------
Operating expenses:
Programming, technical and news....... 5,678,829 11,734,285 40,987,411
Sales and promotion................... 7,137,039 17,556,256 47,026,490
General and administrative............ 2,844,284 8,174,189 23,195,565
Depreciation and amortization......... 2,954,159 8,256,268 20,877,374
Corporate expenses.................... 599,657 1,815,535 4,844,985
Stock option compensation............. -- 6,360,000 3,800,000
----------- ------------ ------------
19,213,968 53,896,533 140,731,825
----------- ------------ ------------
Income from operations........ 7,103,127 10,425,610 37,669,706
Other (income) expense:
Interest expense...................... 5,246,827 18,114,549 35,703,862
Other, net............................ (19,265) 42,402 68,419
----------- ------------ ------------
Income (loss) before provision
for income taxes and
extraordinary loss.......... 1,875,565 (7,731,341) 1,897,425
Provision for income taxes.............. 1,163,716 3,799,955 4,612,551
----------- ------------ ------------
Net income (loss) before
extraordinary loss.......... 711,849 (11,531,296) (2,715,126)
Extraordinary loss on early
extinguishment of debt, net of income
tax benefit........................... 817,819 -- 4,176,897
----------- ------------ ------------
Net loss...................... (105,970) (11,531,296) (6,892,023)
Dividends and accretion on preferred
stock................................. -- -- 11,556,943
Loss on repurchase of preferred stock... -- -- 16,570,065
----------- ------------ ------------
Net loss attributable to
common stock................ $ (105,970) $(11,531,296) $(35,019,031)
=========== ============ ============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-48
<PAGE> 231
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON STOCKHOLDER'S EQUITY
<TABLE>
<CAPTION>
COMMON STOCK
--------------- ADDITIONAL ACCUMULATED
SHARES AMOUNT PAID-IN CAPITAL DEFICIT TOTAL
------ ------ --------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1993.............. -- -- -- -- --
Issuance of common stock on January
10, 1994........................... 1,000 $ 10 $ 25,499,990 -- $ 25,500,000
Issuance of common stock on October
12, 1994........................... 1,000 10 34,499,990 -- 34,500,000
Net loss.............................. -- -- -- $ (105,970) (105,970)
------ ---- ------------ ------------ ------------
Balance, December 31, 1994.............. 2,000 20 59,999,980 (105,970) 59,894,030
Stock option compensation............. -- -- 6,360,000 -- 6,360,000
Contribution of stock held by
affiliate of Hicks, Muse, Tate &
Furst.............................. (1,000) (10) 10 -- --
Net loss.............................. -- -- -- (11,531,296) (11,531,296)
------ ---- ------------ ------------ ------------
Balance, December 31, 1995.............. 1,000 10 66,359,990 (11,637,266) 54,722,734
Loss on repurchase of preferred
stock.............................. -- -- (16,570,065) -- (16,570,065)
Dividends and accretion on preferred
stock.............................. -- -- (11,556,943) -- (11,556,943)
Capital contributions................. -- -- 181,287,120 -- 181,287,120
Net loss.............................. -- -- -- (6,892,023) (6,892,023)
------ ---- ------------ ------------ ------------
Balance, December 31, 1996.............. 1,000 $ 10 $219,520,102 $(18,529,289) $200,990,823
====== ==== ============ ============ ============
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-49
<PAGE> 232
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------
1994 1995 1996
------------- ------------ -------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss................................................. $ (105,970) $(11,531,296) $ (6,892,023)
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 2,954,159 8,256,268 20,877,374
Amortization of deferred financing costs............... 226,000 791,000 2,633,583
Stock option compensation.............................. -- 6,360,000 3,800,000
Deferred income taxes.................................. 1,490,716 3,788,877 4,548,481
Extraordinary loss..................................... 490,819 -- 4,176,897
Changes in assets and liabilities, net of the effects
of acquired businesses:
Accounts receivable, net............................. (9,675,567) (2,343,520) (13,408,364)
Prepaids and other................................... 216,036 (214,868) (982,637)
Accounts payable..................................... 1,509,064 (541,914) 1,429,070
Accrued liabilities.................................. 1,334,397 447,196 3,706,725
Accrued interest..................................... 2,251,654 459,237 4,157,948
------------- ------------ -------------
Net cash provided by operating activities......... 691,308 5,470,980 24,047,054
------------- ------------ -------------
Cash flows from investing activities:
Purchases of broadcasting properties..................... (204,509,849) (24,351,529) (439,533,609)
Purchases of other property and equipment................ (238,648) (1,709,897) (3,208,553)
------------- ------------ -------------
Net cash used in investing activities............. (204,748,497) (26,061,426) (442,742,162)
------------- ------------ -------------
Cash flows from financing activities:
Proceeds from issuance of long-term debt................. 168,910,299 -- 277,627,630
Proceeds from borrowings under revolving debt facility... 5,639,237 54,458,819 101,966,762
Repayment of long-term debt.............................. (25,000,000) (2,437,500) (109,816,233)
Repayments of borrowings under revolving debt facility... (3,975,539) (31,633,467) (105,540,183)
Issuance of preferred stock.............................. -- -- 175,412,322
Repurchase of preferred stock............................ -- -- (95,462,423)
Additional capital contributions......................... 60,000,000 -- 178,525,254
Distribution of additional paid in capital............... -- -- (1,038,134)
Payment of preferred stock dividends..................... -- -- (505,555)
------------- ------------ -------------
Net cash provided by financing activities......... 205,573,997 20,387,852 421,169,440
------------- ------------ -------------
Net increase (decrease) in cash................... 1,516,808 (202,594) 2,474,332
Cash, at beginning of year................................. -- 1,516,808 1,314,214
------------- ------------ -------------
Cash, at end of year....................................... $ 1,516,808 $ 1,314,214 $ 3,788,546
============= ============ =============
Supplemental Disclosure of Cash Flow Information (Note 5):
Cash paid during the period for:
Interest................................................. $ 2,769,173 $ 16,864,312 $ 28,912,331
Income taxes............................................. $ -- $ -- $ 62,407
Non-cash financing:
Dividends and accretion on preferred stock............... $ -- $ -- $ 11,556,943
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-50
<PAGE> 233
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BUSINESS AND ORGANIZATION
Chancellor Radio Broadcasting Company, formerly Chancellor Broadcasting
Company ("Chancellor Radio Broadcasting") and its wholly owned subsidiaries
(collectively, the "Company") operate in a single industry segment, which
segment encompasses the ownership and management of radio broadcast stations
located in markets throughout the United States. Chancellor Radio Broadcasting,
a wholly owned subsidiary of Chancellor Broadcasting Company, formerly
Chancellor Corporation ("Chancellor"), was formed in June 1994 to acquire and
operate radio stations owned by American Media, Inc. and two corporations and
one partnership affiliated with American Media, Inc. (collectively, the
"American Media Station Group") and by Chancellor Communications Corporation
("Chancellor Communications"). That transaction was consummated on October 12,
1994. Chancellor Communications was formed in 1993 to acquire and operate radio
stations KGBY-FM and KFBK-AM. That transaction closed on January 10, 1994 and
the consolidated financial statements include the activity of all the stations
since their respective dates of acquisition.
In June 1995, the 1,000 shares of common stock of Chancellor Communications
held by an affiliate of Hicks, Muse, Tate & Furst Incorporated ("Hicks Muse")
were exchanged for additional shares of common stock of Chancellor, which
subsequently contributed these shares to Chancellor Radio Broadcasting as an
additional capital contribution. As a result, Chancellor Communications became a
wholly owned subsidiary of Chancellor Radio Broadcasting. Chancellor
Communications was then merged with the Company. The transactions had no effect
on the financial position or results of operations of the Company.
Chancellor Broadcasting Licensee Company is a wholly-owned non-operating
legal entity formed to hold title to the Company's broadcast licenses. Such
entity has no significant other assets and no material liabilities,
contingencies or commitments. Consistent with industry practice for financial
reporting purposes, no material value has been specifically allocated to the
licenses. Accordingly, no financial statement information has been provided
herein due to its immateriality to investors.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The consolidated financial statements include the accounts of Chancellor
and its subsidiaries Chancellor Broadcasting and Chancellor Broadcasting
Licensee Company for all periods presented, and its subsidiaries Trefoil
Communications, Inc., Shamrock Broadcasting Inc., Shamrock Radio Licenses, Inc.,
Shamrock Broadcasting Licenses of Denver, Inc. and Shamrock Broadcasting of
Texas, Inc. from their date of acquisition. All significant intercompany
accounts and transactions have been eliminated.
Cash
The Company maintains cash in demand deposits with financial institutions.
The Company had no cash equivalents during the periods presented. All highly
liquid investments with an original maturity of less than Six months are
considered cash equivalents.
Property and Equipment
Property and equipment is stated at cost, less accumulated depreciation and
amortization. Depreciation is determined using the straight-line method over the
estimated useful lives of the various classes of assets, which range from three
to twenty-five years. Leasehold improvements are amortized over the shorter of
their useful lives or the terms of the related leases. Costs of repairs and
maintenance are charged to operations as incurred.
F-51
<PAGE> 234
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Intangibles
Goodwill represents the excess of cost over the fair values of the
identifiable tangible and other intangible net assets acquired and is being
amortized over the straight-line method over forty years. Other intangible
assets comprise amounts paid for pending acquisitions, agreements not to
compete, a tower lease advantage and organization costs incurred in the
incorporation of the Company. Other intangibles, excluding pending acquisition
costs, are being amortized by the straight-line method over their estimated
useful lives ranging from three to ten years. Pending acquisition costs are
deferred and capitalized as part of completed acquisitions or expensed in the
period in which the pending acquisition is terminated.
The Company evaluates intangible assets for potential impairment by
analyzing the operating results, future cash flows on an undiscounted basis,
trends and prospects of the Company's stations, as well as by comparing them to
their competitors. The Company also takes into consideration recent acquisition
patterns within the broadcast industry, the impact of recently enacted or
potential FCC rules and regulations and any other events or circumstances which
might indicate potential impairment.
Deferred Financing Costs
Costs associated with obtaining debt financing are capitalized and
amortized using the interest method over the term of the related debt. As a
result of refinancing the Company's original credit facility, during the year
ended December 31, 1994 unamortized deferred financing costs of approximately
$818,000 were expensed as an extraordinary item in the consolidated statements
of operations. As a result of refinancing the Company's second credit facility,
the early redemption of $20.0 million of its existing notes (defined) and the
prepayment of $18.7 million of it's a Term Loan Facility (defined) from its
third credit facility, during the year ended December 31, 1996 unamortized
deferred financing costs of $3.4 million, less $543,500 of tax benefit, were
expensed as an extraordinary item in the consolidated statements of operations.
Approximately $5.1 million, $118,000 and $18.6 million of new financing costs
were incurred for the years ended December 31, 1994, 1995 and 1996,
respectively. Accumulated amortization at December 31, 1995 and 1996, amounted
to approximately $959,000 and $2.8 million, respectively.
Revenue Recognition
Broadcasting operations derive revenue primarily from the sale of program
time and commercial announcements to local, regional and national advertisers.
Revenue is recognized when the programs and commercial announcements are
broadcast.
Barter Transactions
Barter transactions represent advertising time exchanged for promotional
items, advertising, supplies, equipment, and services. Barter revenue is
recorded at the fair value of the goods or services received and is recognized
in income when the advertisements are broadcast. Goods or services are charged
to expense when received or used. Advertising time owed and goods or services
due the Company are included in accounts payable and accounts receivable,
respectively.
Advertising Costs
The Company incurs various marketing and promotional costs to add and
maintain listenership. These costs are expensed as incurred and totaled
approximately $1.4 million, $4.2 million and $16.2 million for the years ended
December 31, 1994, 1995 and 1996, respectively.
F-52
<PAGE> 235
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Stock Option Compensation
Stock option compensation expense is recognized in accordance with
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees".
Income Taxes
Deferred income taxes are recognized for the tax consequences in future
years of differences between the tax bases of assets and liabilities and their
financial reporting amounts at each year-end based on enacted tax laws and
statutory tax rates applicable to the periods in which the differences are
expected to affect taxable earnings. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount more likely than not to be
realized. Income tax expense is the tax payable for the period and the change
during the period in deferred tax assets and liabilities.
Chancellor, Chancellor Radio Broadcasting and Chancellor Broadcasting
Licensee Company have elected to file consolidated federal income tax returns
(the "Chancellor Group") and Trefoil Communications, Inc., Shamrock Broadcasting
Inc., Shamrock Radio Licenses, Inc., Shamrock Broadcasting Licenses of Denver,
Inc. and Shamrock Broadcasting of Texas, Inc. have elected to file consolidated
federal income tax returns (the "Shamrock Group"). Each of these groups have
entered into a tax sharing agreement governing the allocation of any
consolidated federal income tax liability among its members. In general, each
subsidiary allocates and pays income taxes computed as if each subsidiary filed
a separate federal income tax return. Similar principles apply to any
consolidated state and local income tax liabilities.
Concentration of Credit Risk
The Company's revenue and accounts receivable primarily relate to
advertising of products and services within the radio stations' broadcast areas.
The Company performs ongoing credit evaluations of its customers' financial
condition and, generally, requires no collateral from its customers. Credit
losses have been within management's expectations and adequate allowances for
any uncollectible trade receivables are maintained.
Reclassifications
Certain prior year amounts have been reclassified to conform with the
current year's presentation.
3. PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1995 1996
----------- -----------
<S> <C> <C>
Land....................................................... $ 1,572,229 $ 3,036,663
Building and building improvements......................... 3,159,848 9,202,378
Towers and antenna systems................................. 3,689,972 14,476,104
Studio, technical and transmitting equipment............... 7,830,375 23,026,564
Office equipment, furniture and fixtures................... 2,484,261 5,521,010
Record library............................................. 1,800,510 2,193,236
Vehicles................................................... 362,787 1,117,908
Construction in progress................................... 503,504 78,877
----------- -----------
21,403,486 58,652,740
Less accumulated depreciation.............................. (3,477,641) (9,529,808)
----------- -----------
$17,925,845 $49,122,932
=========== ===========
</TABLE>
F-53
<PAGE> 236
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Depreciation expense for the years ended December 31, 1994, 1995 and 1996
was $0.9 million, $2.6 million and $6.5 million, respectively.
4. INTANGIBLE AND OTHER ASSETS
Intangible and other assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1995 1996
------------ ------------
<S> <C> <C>
Goodwill................................................. $205,971,820 $567,377,120
Noncompete agreements.................................... 1,950,000 2,025,000
Tower lease advantage.................................... 305,000 305,000
Pending acquisition costs................................ 3,246,265 2,620,474
Other.................................................... 45,718 626,220
------------ ------------
211,518,803 572,953,814
Less accumulated amortization............................ (7,710,408) (21,547,720)
------------ ------------
$203,808,395 $551,406,094
============ ============
</TABLE>
Amortization expense for intangible assets for the years ended December 31,
1994, 1995 and 1996 was $2.0 million, $5.7 million and $14.3 million,
respectively.
5. ACQUISITIONS AND DISPOSITIONS OF BROADCASTING PROPERTIES
On January 9, 1994, Chancellor Communications purchased substantially all
the assets and assumed certain liabilities of KGBY-FM and KFBK-AM for
approximately $49.5 million, including acquisition costs. Liabilities assumed
were limited to certain ongoing contractual rights and obligations. The
acquisition has been accounted for as a purchase and, accordingly, the results
of operations associated with the acquired assets have been included in the
accompanying statements from the date of acquisition.
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Property and equipment.................................... $ 4,921
Goodwill and other intangibles............................ 44,401
Prepaid expenses and other assets......................... 413
Accrued liabilities....................................... (205)
-------
Total acquisition................................. $49,530
=======
</TABLE>
On October 12, 1994, Chancellor Radio Broadcasting purchased substantially
all the assets and assumed certain liabilities consisting solely of accrued
expenses and future payments under ongoing contracts of the American Media
Station Group (other than KHYL-FM in Sacramento, California) for approximately
$139.5 million in cash, including acquisition costs and payments in respect of
agreements not to compete. On the same date, Chancellor Communications purchased
all the assets and certain liabilities consisting solely of accrued expenses and
future payments under ongoing contracts of KHYL-FM for approximately $15.5
million in cash, including acquisition costs and payments in respect of an
agreement not to compete. These acquisitions have been accounted for as
purchases and, accordingly, the results of operations associated with the
acquired assets have been included in the accompanying statements from the date
of acquisition.
F-54
<PAGE> 237
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Property and equipment.................................... $ 12,671
Goodwill and other intangibles............................ 142,618
Prepaid expenses and other assets......................... 353
Accrued liabilities....................................... (662)
--------
Total acquisition................................. $154,980
========
</TABLE>
Simultaneously with the closing of these transactions, Chancellor acquired
all of Chancellor Communications' outstanding nonvoting stock in exchange for
newly issued shares of Chancellor's nonvoting stock. Chancellor contributed all
the acquired shares of Chancellor Communication's nonvoting stock to Chancellor
Radio Broadcasting, as a result of which Chancellor Communications became a
subsidiary of Chancellor Radio Broadcasting. Because these entities are under
common management and control, this exchange has been accounted for at
historical cost in a manner similar to a pooling of interests.
On July 31, 1995, the Company purchased substantially all the assets and
assumed certain liabilities of KDWB-FM for approximately $22.6 million,
including acquisition costs. Liabilities assumed were limited to certain ongoing
contractual rights and obligations. The acquisition has been accounted for as a
purchase and, accordingly, the results of operations associated with the
acquired assets have been included in the accompanying statements from the date
of acquisition.
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Property and equipment................ $ 1,866
Goodwill and other intangibles........ 21,032
Prepaid expenses and other assets..... 82
Other liabilities..................... (383)
-------
Total acquisition............. $22,597
=======
</TABLE>
On February 14, 1996, the Company acquired all of the outstanding capital
stock of Trefoil Communications, Inc. ("Trefoil") for approximately $408.0
million, including acquisition costs. Trefoil is a holding company, the sole
asset of which is the capital stock of Shamrock Broadcasting, Inc. ("Shamrock
Broadcasting"). The acquisition of Trefoil was financed through a new credit
agreement, new senior subordinated notes, Chancellor's initial public stock
offering, senior exchangeable preferred stock and the issuance of unregistered
common stock of Chancellor. The acquisition of Trefoil was accounted for as a
purchase for financial accounting purposes and a non-taxable business
combination for tax purposes and, accordingly, the results of operations
associated with the acquired assets have been included in the accompanying
statements from the date of acquisition.
F-55
<PAGE> 238
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Cash.................................. $ 38
Accounts receivable, net.............. 18,636
Prepaid expenses and other assets..... 1,274
Property and equipment................ 36,429
Goodwill and other intangibles........ 361,425
Deferred tax asset.................... 5,464
Accrued liabilities................... (14,564)
Other noncurrent liabilities.......... (702)
--------
Total acquisition............. $408,000
========
</TABLE>
Simultaneously with the acquisition of Trefoil, the Company entered into a
time brokerage agreement with Evergreen Media Corporation for the outsourcing of
certain limited functions of WWWW-FM and WDFN-AM, both Detroit stations acquired
with Trefoil, and an option to purchase such stations for $30.0 million of cash.
These stations were operated pursuant to this agreement until January 30, 1997,
the date on which the disposition of these stations occurred. Subsequent to the
acquisition of Trefoil, KTBZ-FM, a Houston station acquired with Trefoil, was
operated by Secret Communications, L.P. ("Secret") under a Local Marketing
Agreement ("LMA")/Exchange Agreement with the Company. In March 1996, the
Company entered into an agreement to exchange KTBZ-FM and $5.6 million of cash
to Secret for KALC-FM and KIMN-FM, Denver, Colorado. The Company began managing
certain limited functions of these stations, pursuant to an LMA, effective April
1, 1996 and closed on the exchange of the stations effective July 31, 1996. The
exchange has been accounted for using the fair values of the assets exchanged
plus the $5.6 million of additional cash and $0.8 million of additional
acquisition costs, and was allocated to the net assets acquired based upon their
estimated fair market values. The excess of the purchase price over the
estimated fair value of net assets acquired amounted to approximately $28.7
million, which has been accounted for as goodwill and is being amortized over 40
years using the straight line method.
The exchange is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Prepaid expenses and other assets......................... $ 163
Property and equipment.................................... 2,363
Goodwill and other intangibles............................ 28,657
Accrued liabilities....................................... (138)
-------
Total acquisition................................. $31,045
=======
</TABLE>
On May 15, 1996, the Company entered into an agreement to acquire
substantially all the assets and certain liabilities of OmniAmerica Group
("Omni") for an aggregate price of $178.0 million, including $163.0 million of
cash and $15.0 million of Chancellor's Class A Common Stock. On June 24, 1996,
the Company entered into an agreement with American Radio Systems Corporation
("American Radio") whereby it will exchange the West Palm Beach, Florida
stations acquired from Omni for American Radio's KSTE-AM and $33.0 million of
cash. KSTE-AM is located in Rancho Cordova, California and is part of the
Sacramento market. On July 1, 1996, Chancellor entered into an agreement with
SFX Broadcasting, Inc. ("SFX") whereby it will exchange the Jacksonville,
Florida stations being acquired pursuant to the Omni acquisition agreement and
$11.0 million of cash for SFX's WBAB-FM, WBLI-FM, WGBB-AM and WHFM-FM,
Nassau-Suffolk, New York. Pursuant to various agreements, the Company began
managing certain limited functions of the remaining Omni stations and the SFX
stations beginning July 1, 1996, and station KSTE-AM beginning August 1, 1996.
F-56
<PAGE> 239
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On November 22, 1996, the Company acquired substantially all the assets of
WKYN-AM, Florence, Kentucky, for approximately $1.4 million, including
transaction costs. WKYN-AM serves the Cincinnati, Ohio market.
On January 23, 1997, the Company acquired substantially all the assets and
certain liabilities of Colfax Communications ("Colfax") for an aggregate price
of $373.0 million. Liabilities assumed were limited to certain ongoing
contractual rights and obligations. The acquisition will be accounted for as a
purchase. Pursuant to the acquisition agreement, at December 31, 1996 the
Company had $20.4 million of cash in a restricted escrow account which was
remitted to Colfax at closing. On January 29, 1997, the Company entered into an
agreement to sell WMIL-FM and WOKY-AM, Milwaukee, Wisconsin stations acquired
from Colfax, to Clear Channel Radio, Inc. for $40.0 million in cash.
On February 13, 1997, the Company acquired substantially all the assets and
certain liabilities of Omni. Liabilities assumed were limited to certain ongoing
contractual rights and obligations. The acquisition will be accounted for as a
purchase.
The following summarizes the unaudited consolidated pro forma data as
though the acquisitions of KDWB-FM, Shamrock Broadcasting Company and KIMN-FM
and KALC-FM had occurred as of the beginning of 1995 (in thousands):
<TABLE>
<CAPTION>
1995 1996
------------------------ ------------------------
HISTORICAL PRO FORMA HISTORICAL PRO FORMA
---------- ----------- ---------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
Net revenue............................. $ 64,322 $162,360 $178,402 $187,198
Net income (loss) before extraordinary
loss.................................. (11,531) (8,319) (2,715) (310)
Net loss................................ (11,531) (8,319) (6,892) (310)
</TABLE>
The following summarizes the unaudited consolidated pro forma balance sheet
as of December 31, 1996 as though the acquisition of Colfax, the issuance of the
Exchangeable Preferred Stock, the issuance of Chancellor's Convertible Preferred
Stock (including the over-allotment), and the New Credit Agreement had occurred
on that date (in thousands):
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA
---------- -----------
(UNAUDITED)
<S> <C> <C>
Total assets................................................ $690,743 $1,053,833
======== ==========
Current liabilities......................................... $ 24,208 $ 40,598
Long-term liabilities....................................... 358,322 410,359
Preferred stock............................................. 107,222 404,585
Common stockholder's equity................................. 200,991 198,291
-------- ----------
Total liabilities and stockholders' equity.................. $690,743 $1,053,833
======== ==========
</TABLE>
6. ACCRUED LIABILITIES
Accrued liabilities consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1995 1996
---------- -----------
<S> <C> <C>
Salaries................................................... $ 534,297 $ 3,697,072
Sales commissions.......................................... 889,010 2,149,167
Rep commissions............................................ 561,189 1,549,048
Other...................................................... 2,708,452 5,134,544
---------- -----------
$4,692,948 $12,529,831
========== ===========
</TABLE>
F-57
<PAGE> 240
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
7. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1995 1996
------------ ------------
<S> <C> <C>
Term loan............................................... $ 67,562,500 $ 74,968,527
Revolving credit loan................................... 24,607,242 20,344,972
Subordinated notes due 2004............................. 80,000,000 260,000,000
------------ ------------
172,169,742 355,313,499
Less current portion.................................... 4,062,500 400,000
------------ ------------
$168,107,242 $354,913,499
============ ============
</TABLE>
The Company's term and revolving credit facilities were refinanced on
January 23, 1997, in conjunction with the acquisition of Colfax Communications
under a new bank credit agreement (the "New Credit Agreement") with Bankers
Trust Company, as administrative agent, and other institutions party thereto.
The New Credit Agreement includes a $225.0 million term loan facility (the "Term
Loan Facility") and a revolving loan facility (the "Revolving Loan Facility"
and, together with the Term Loan, the "New Bank Financing"). The Revolving Loan
Facility originally provides for borrowings up to $120.0 million, which is
subsequently reduced as and when the Company receives the net cash proceeds of
the pending station swaps and dispositions. In connection with the refinancing
of the term and revolving loan facilities, the Company incurred an extraordinary
charge to write-off deferred finance costs of approximately $4.5 million.
The New Bank Financing is collateralized by (i) a first priority perfected
pledge of all capital stock and notes owned by the Company and (ii) a first
priority perfected security interest in all other assets (including receivables,
contracts, contract rights, securities, patents, trademarks, other intellectual
property, inventory, equipment and real estate) owned by the Company, excluding
FCC licenses, leasehold interests in studio or office space and leasehold and
partnership interests in tower or transmitter sites in which necessary consents
to the granting of a security interest cannot be obtained without payments to
any other party or on a timely basis. The New Bank Financing also is guaranteed
by the subsidiaries of Chancellor and Chancellor Radio Broadcasting, whose
guarantees are collateralized by a first priority perfected pledge of the
capital stock Chancellor Radio Broadcasting.
The Term Loan Facility is due in increasing quarterly installments
beginning in 1997 and matures in January 2003. All outstanding borrowings under
the Revolving Facility mature in January 2003. The facilities bear interest at a
rate equal to, at the Company's option, the prime rate of Bankers Trust Company,
as announced from time to time, or the London Inter-Bank Offered Rate ("LIBOR")
in effect from time to time, plus an applicable margin rate. The Company pays
quarterly commitment fees in arrears equal to either .375% or .250% per annum on
the unused portion of the Revolving Facility, depending upon whether the
Company's leverage ratio is equal to or greater than 4.5:1 or less than 4.5:1,
respectively. The bank financing facilities which existed on December 31, 1996
accrued interest at the prime rate plus 1.25% (9.5%) on $3.3 million and the
LIBOR rate plus 2.50% (8.125%) on $92.0 million of borrowings.
In connection with the IPO (defined), the Company redeemed 25% of its
Existing Notes (defined) for approximately $22.2 million. The redemption was
completed in March 1996 and resulted in an extraordinary charge of $2.8 million.
The remaining $60.0 million 12 1/2% Senior Subordinated Notes due 2004 (the
"Existing Notes") mature October 1, 2004, and bear interest at 12.5% per annum.
On February 14, 1996, in conjunction with the acquisition of Trefoil
Communications, Inc., the Company issued $200.0 million aggregate principal
amount of 9 3/8% Senior Subordinated Notes due 2004 (the "New Notes" and,
together with the Existing Notes, the "Notes"), which mature on October 1, 2004,
and bear interest at 9.375% per annum. Interest on the Notes is paid
semi-annually. The Existing and New Notes are redeemable, in whole or
F-58
<PAGE> 241
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
in part, at the option of the Company on or after October 1, 1999 and February
1, 2000, respectively, at redemption prices expressed as a percentage of the
principal amount, ranging from 100.000% to 105.556%, plus accrued interest
thereon to the date of acquisition. In addition, prior to January 31, 1999, the
Company may redeem up to 25% of the original aggregate principal amount of the
New Notes with the net proceeds of one or more public equity offerings. The
Notes are unsecured obligations of the Company, ranking subordinate in right of
payment to all senior debt of the Company. The New Notes rank pari passu in
right of payment to the Existing Notes. The Notes are guaranteed on a senior
subordinated basis by Chancellor Radio Broadcasting Company's subsidiaries.
Scheduled debt maturities for the Company's outstanding long-term debt at
December 31, 1996 for each of the next five years and thereafter are as follows:
<TABLE>
<S> <C>
1997........................................................ $ 400,000
1998........................................................ 400,000
1999........................................................ 9,874,886
2000........................................................ 11,296,119
2001........................................................ 17,469,864
Thereafter.................................................. 315,872,630
------------
$355,313,499
============
</TABLE>
See Note 5 for pro forma effects of the New Bank Financing subsequent to
year end. Both the New Bank Financing and Notes indentures contain certain
covenants, including, among others, limitations on the incurrence of additional
debt, in the case of the New Bank Financing; requirements to maintain certain
financial ratios; and restrictions on the payment of dividends to stockholders
and from the subsidiaries to Chancellor.
8. CAPITAL STRUCTURE
In February 1996, Chancellor sold 7.7 million shares of its Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), in an initial
public offering, (the "IPO"), which generated net proceeds of $142.4 million,
and in a private placement, issued $100.0 million of exchangeable redeemable
preferred stock (the "Acquisition Preferred Stock") of Chancellor Radio
Broadcasting and 742,192 shares of Class A common stock of Chancellor to an
affiliated entity and other investors.
Immediately prior to the IPO, Chancellor effected a recapitalization of its
current capital stock. Pursuant to the recapitalization, each six shares of
Chancellor's Nonvoting Stock were reclassified into one share of Class A Common
Stock. Each six shares of Chancellor's Voting Stock were reclassified into one
share of Class B Common Stock and each six shares of Convertible Nonvoting Stock
were reclassified into one share of Class C Common Stock. In connection with the
recapitalization, 63,334 shares of Class A Common Stock were exchanged for an
equal number of shares of Class B Common Stock, and an additional 8,484,410
shares of Class A Common Stock were exchanged for an equal number of shares of
Class C Common Stock. The recapitalization has been given retroactive effect in
the financial statements.
In February 1996, subsequent to the IPO, the Company completed a private
placement of $100.0 million of newly authorized Senior Cumulative Exchangeable
Preferred Stock (the "Old Preferred Stock"). Upon completion, the proceeds of
the Old Preferred Stock were used to redeem the Acquisition Preferred Stock and
55,664 shares of Class A Common Stock. The redemption resulted in a charge to
net loss attributable to common stock of approximately $16.6 million and an
additional reduction of paid-in capital of approximately $1.0 million.
F-59
<PAGE> 242
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In June 1996, the holders of Chancellor's Class C Common Stock filed an
application with the FCC to convert the stock into Chancellor's Class B Common
Stock. The holders of Class C Common Stock received approval of their
applications and subsequently converted their stock on October 22, 1996.
In August 1996 pursuant to an agreement entered into at the time of the
IPO, Chancellor sold 1.2 million shares of Class A Common Stock in a private
placement to an affiliated entity, which generated proceeds of $23.0 million
which were contributed to Chancellor Radio Broadcasting.
In September 1996, the Company completed an exchange offering whereby it
exchanged the Old Preferred Stock for 1,000,000 shares of 12 1/4% Series A
Senior Cumulative Exchangeable Preferred Stock (the "Senior Exchangeable
Preferred Stock") in a transaction registered under the Securities Act of 1933,
as amended. The terms of the Senior Exchangeable Preferred Stock are
substantially identical to those of the Old Preferred Stock. Dividends on the
Senior Exchangeable Preferred Stock accrue from its date of issuance and are
payable quarterly commencing November 15, 1996, at a rate per annum of 12 1/4%
of the then effective liquidation preference per share. Dividends may be paid,
at the Company's option, on any dividend payment date occurring on or prior to
February 15, 2001 either in cash or by adding such dividends to the then
effective liquidation preference of the Senior Exchangeable Preferred Stock. The
Senior Exchangeable Preferred Stock is redeemable at the Company's option, in
whole or in part at any time on or after February 15, 2001, at various
redemption prices, plus, accumulated and unpaid dividends to the date of
redemption. In addition, prior to February 15, 1999, the Company may, at its
option, redeem the Senior Exchangeable Preferred Stock with the net cash
proceeds from one or more Public Equity Offerings (as defined), at various
redemption prices, plus, accumulated and unpaid dividends to the redemption
date; provided, however, that after any such redemption there is outstanding at
least 75% of the number of shares of Senior Exchangeable Preferred Stock
originally issued.
The Company is required, subject to certain conditions, to redeem all of
the Senior Exchangeable Preferred Stock outstanding on February 15, 2008, at a
redemption price equal to 100% of the then effective liquidation preference
thereof, plus, accumulated and unpaid dividends to the date of redemption. Upon
the occurrence of a change of control (as defined), the Company must offer to
purchase all of the then outstanding shares of Senior Exchangeable Preferred
Stock at a price equal to 101% of the then effective liquidation preference
thereof, plus, accumulated and unpaid dividends to the date of purchase. Subject
to certain conditions, the Senior Exchangeable Preferred Stock is exchangeable
in whole, but not in part, at the option of the Company, on any dividend payment
date for the Company's 12 1/4% subordinated exchange debentures due 2008.
On January 23, 1997, Chancellor completed a private placement of $100.0
million of newly authorized 7% Convertible Preferred Stock (the "Convertible
Preferred Stock") and Chancellor Radio Broadcasting completed a private
placement of $200.0 million of newly authorized 12% Exchangeable Preferred Stock
(the "Exchangeable Preferred Stock").
Dividends on the Convertible Preferred Stock accrue from its date of
issuance and are payable quarterly commencing April 15, 1997, at a rate per
annum of 7% of the liquidation preference per share. The liquidation preference
of the Convertible Preferred Stock is $50.00 per share, and requires cash
dividends of $7.7 million per year. Because Chancellor is a holding company with
no assets other than the common stock of the Company, Chancellor will rely
solely on the dividends from the Company to satisfy its dividend payment
obligation on the 7% Convertible Preferred Stock. The Convertible Preferred
Stock is convertible at the option of the holder at any time after March 23,
1997, unless previously redeemed, into Class A Common Stock of Chancellor at a
conversion price of $32.90 per share of Class A Common Stock, subject to
adjustment in certain events. In addition, after January 19, 2000, the Company
may, at its option, redeem the Convertible Preferred Stock, in whole or in part,
at specified redemption prices plus accrued and unpaid dividends through the
redemption date. Upon the occurrence of a change of control (as defined),
Chancellor must, subject to certain conditions, offer to purchase all of the
then outstanding shares of Convertible Preferred Stock at a
F-60
<PAGE> 243
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
price equal to 101% of the liquidation preference thereof, plus accrued and
unpaid dividends to the date of purchase.
Dividends on the Exchangeable Preferred Stock will accrue from the date of
its issuance and will be payable semi-annually commencing July 15, 1997, at a
rate per annum of 12% of the liquidation preference per share. Dividends may be
paid, at the Company's option, on any dividend payment date occurring on or
prior to January 15, 2002 either in cash or in additional shares of Exchangeable
Preferred Stock. The liquidation preference of the Exchangeable Preferred Stock
will be $100.00 per share. The Exchangeable Preferred Stock is redeemable at the
Company's option, in whole or in part at any time on or after January 15, 2002,
at the redemption prices set forth herein, plus accrued and unpaid dividends to
the date of redemption. In addition, prior to January 15, 2000, the Company may,
at its option, redeem the Exchangeable Preferred Stock with the net cash
proceeds from one or more Public Equity Offerings (as defined), at various
redemption prices plus accrued and unpaid dividends to the redemption date;
provided, however, that after any such redemption there is outstanding at least
$150.0 million aggregate liquidation preference of Exchangeable Preferred Stock.
The Company is required, subject to certain conditions, to redeem all of the
Exchangeable Preferred Stock outstanding on January 15, 2009, at a redemption
price equal to 100% of the liquidation preference thereof, plus accrued and
unpaid dividends to the date of redemption. Upon the occurrence of a Change of
Control (as defined), the Company will, subject to certain conditions, offer to
purchase all of the then outstanding shares of Exchangeable Preferred Stock at a
price equal to 101% of the liquidation preference thereof, plus accrued and
unpaid dividends to the repurchase date. In addition, prior to January 15, 1999,
upon the occurrence of a Change of Control, the Company will have the option to
redeem the Exchangeable Preferred Stock in whole but not in part at a redemption
price equal to 112% of the liquidation preference thereof, plus accrued and
unpaid dividends to the date of redemption. The Exchangeable Preferred Stock
will, with respect to dividend rights and rights on liquidation, rank junior to
the Senior Exchangeable Preferred Stock. Subject to certain conditions, the
Exchangeable Preferred Stock is exchangeable in whole, but not in part, at the
option of the Company, on any dividend payment date for the Company's 12%
subordinated exchange debentures due 2009, including any such securities paid in
lieu of cash interest.
In addition to the accrued dividends discussed above, the recorded value of
the Senior Exchangeable Preferred Stock, the Convertible Preferred Stock and the
Exchangeable Preferred Stock includes or will include an amount for the
accretion of the difference between the stock's fair value at date of issuance
and its mandatory redemption amount, calculated using the effective interest
method.
9. INCOME TAXES
All of the Company's revenues were generated in the United States. The
provision for income taxes for continuing operations consists of the following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
------------------------------------
1994 1995 1996
---------- ---------- ----------
<S> <C> <C> <C>
Current:
State.......................................... $ -- $ 11,098 $ 64,070
Deferred:
Federal........................................ 1,267,109 3,220,528 3,866,209
State.......................................... 223,607 568,329 682,272
---------- ---------- ----------
Total provision........................ $1,490,716 $3,799,955 $4,612,551
========== ========== ==========
</TABLE>
F-61
<PAGE> 244
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Income tax expense differs from the amount computed by applying the federal
statutory income tax rate of 34% to income before income taxes for the following
reasons:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1994 1995 1996
---------- ----------- ----------
<S> <C> <C> <C>
U.S. federal income tax at statutory
rate.................................. $ 637,692 $(2,628,656) $ 645,125
State income taxes, net of federal
benefit............................... 112,533 (463,880) 113,846
Valuation allowance provided for loss
carryforward generated during the
current period........................ 720,490 6,589,750 307,000
Reconciliation of return to estimate.... -- 71,510 --
Permanent difference.................... 20,001 231,231 3,546,580
---------- ----------- ----------
$1,490,716 $ 3,799,955 $4,612,551
========== =========== ==========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1995 1996
----------- ------------
<S> <C> <C>
The deferred tax assets (liabilities)
consist of the following:
Loss carryforwards expiring 2009 and
2010............................... $ 4,766,240 $ 11,806,985
Deferred stock option compensation
deduction.......................... 2,544,000 4,064,000
Tax credits........................... -- 2,951,555
Other................................. 105,411 680,819
----------- ------------
Gross deferred tax assets.......... 7,415,651 19,503,359
----------- ------------
Depreciation and amortization......... (5,057,772) (21,488,463)
----------- ------------
Deferred tax assets valuation
allowance.......................... (7,310,240) (621,210)
----------- ------------
Net deferred tax liabilities....... $(4,952,361) $ (2,606,314)
=========== ============
</TABLE>
The deferred tax valuation allowance was originally established due to the
uncertainty surrounding the realizability of the Company's deferred tax assets
using the "more likely than not" criteria. During the fourth quarter of 1996,
the Company revised its estimate of the likelihood that it will realize the
majority of its deferred tax assets and adjusted its valuation allowance
accordingly. This revised estimate was the direct result of the acquisition of
Trefoil. Reversal of the valuation allowance related to deferred tax assets
which existed on the date of acquisition or which were acquired as a result of
the Trefoil acquisition were credited against the original purchase accounting
allocation to goodwill. The reversal of the valuation allowance related to
deferred tax assets generated subsequent to the acquisition were credited as a
reduction of income tax expense and extraordinary losses as appropriate.
The Company's tax credits and net operating loss carryforwards at December
31, 1996 begin expiring in 1997 and 2001, respectively. The Company has provided
a valuation allowance for those tax credits which do not meet a "more likely
than not" realizability test.
10. EMPLOYEE BENEFIT PLAN
The Company has a 401(k) Savings Plan, whereby eligible employees can
contribute up to either 15% of their salary, per year, subject to certain
maximum contribution amounts. Prior to 1996, the Company had not made any
contributions to the plan, nor is it required to in future periods. However, the
Company did elect to make a discretionary match for 1996 of approximately
$250,000. Employees become eligible to participate in the plan after the
completion of one year of service and the attainment of age twenty-one.
F-62
<PAGE> 245
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
11. COMMITMENTS
The Company leases real property, office space, broadcasting equipment and
office equipment under various noncancellable operating leases. Certain of the
Company's leases contain escalation clauses, renewal options and/or purchase
options. In addition, the Company assumed lease obligations in connection with
the acquisition of Trefoil on February 14, 1996. The Company also has employment
and rating survey agreements in excess of one year, and has entered into a
twelve-year financial monitoring and oversight agreement with Hicks Muse & Co.
Partners, L.P., which is an affiliate of Hicks, Muse, Tate & Furst Incorporated.
Future minimum payments under the noncancellable operating lease agreements
at December 31, 1996 are approximately as follows:
<TABLE>
<S> <C>
1997........................................................ $ 6,023,586
1998........................................................ 4,865,095
1999........................................................ 4,277,779
2000........................................................ 3,564,247
2001........................................................ 2,805,282
Thereafter.................................................. 13,080,261
-----------
$34,616,250
===========
</TABLE>
Rent expense was approximately $227,000, $1.3 million and $4.8 million for
the years ended December 31, 1994, 1995 and 1996, respectively.
12. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments for which it is practicable to estimate
that value:
For cash, short-term debt, and other current amounts receivable and
payable, and the variable-rate term debt, the carrying amount approximates fair
value.
For the fixed-rate long-term debt, the fair value is estimated based on
quoted market prices. The carrying values at December 31, 1995 and 1996 was
$80.0 million and $260.0 million, respectively, and the estimated fair values at
each date were $85.4 million and $267.8 million, respectively.
For Chancellor Radio Broadcasting's Senior Exchangeable Preferred Stock,
the fair value of $113.75 per share at December 31, 1996 is estimated based on
quoted market prices.
13. STOCK-BASED COMPENSATION
During 1994, Chancellor's Board of Directors granted options to purchase
996,068 shares of its common stock to the senior management of the Company at
exercise prices of $6.00 and $7.50. The option agreements vest over a five year
period and originally contained certain performance criteria and indexed
exercise prices. On September 30, 1995, Chancellor entered into an agreement
with its senior management to substantially revise and amend these option
agreements to eliminate certain of the performance criteria provisions and to
adjust and fix the exercise prices at $7.50 and $8.40, respectively. Management
developed an estimate of the fair value of the stock options in the amount of
$19.0 million. Based upon this estimate and the applicable vesting periods, the
Company recognized stock option compensation expense and a corresponding credit
to equity of $6.4 million in 1995, with the remaining amount to be amortized
over an approximate four year period.
During 1994, Chancellor's Board of Directors adopted a stock option plan
for its non-employee directors providing for the grant of options and stock
awards for up to 480,000 shares of its common stock. Upon
F-63
<PAGE> 246
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
election to the Board of Directors, each person shall be granted a stock option
to purchase a number of shares of common stock equal to the number of shares of
common stock acquired by purchase by such person upon their initial election to
the Board of Directors. Each option shall be immediately vested, will have a
maximum term of ten years and an exercise price, as determined by the plan
committee, equal to or greater than the fair market value of the common stock on
the respective dates of grant.
In February 1996, Chancellor's Board of Directors adopted a stock award
plan for the Company's management, employees and non-employee directors, elected
after the date of adoption of the plan, providing for the grant of options and
stock awards for up to 916,456 shares of Chancellor's Class A Common Stock. The
Company's compensation committee has the sole authority to grant stock options
and to establish option exercise prices and vesting schedules. However,
per-share exercise prices shall not be less than the fair market value of the
stock on the respective date of grant and if the compensation committee does not
determine a vesting schedule, such option shall vest 20% on the first
anniversary of the respective date of grant and the remaining 80% shall vest pro
rata on a monthly basis over the four-year period following the first
anniversary of the date of grant. Non-employee directors elected after the
effective date of this plan automatically are granted a fully-vested option to
purchase 5,000 shares of Chancellor's Class A Common Stock on the date he or she
first becomes a member of the Board of Directors. Terms of all options are
limited to ten years.
A summary of the Company's option activity follows. The Company has elected
to continue expense recognition under Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" and accordingly, has included
certain required pro forma information. Estimates of weighted-average grant-
date fair values of options granted and pro forma option compensation amounts
were determined using the Black-Scholes Single Option approach assuming an
expected option term of 6 years, interest rates ranging from 5.5% to 7.2%, a
dividend yield of zero and a volatility factor of .4 (zero for options issued
prior to the Company's initial public offering in February 1996).
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
----------------------------------------------------------------------------------------
1994 1995 1996
-------------------------- ---------------------------- ----------------------------
WEIGHTED AVERAGE WEIGHTED AVERAGE WEIGHTED AVERAGE
SHARES EXERCISE PRICE SHARES EXERCISE PRICE SHARES EXERCISE PRICE
------- ---------------- --------- ---------------- --------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Beginning of year............ -- $ -- 996,068 $7.27 1,022,734 $ 7.89
Granted:
Exercise price:
equals FMV............... 996,068 7.27 26,666 7.50 713,916 26.03
less than FMV............ -- -- 996,068 7.90 -- --
Exercised.................. -- -- -- -- -- --
Canceled................... -- -- (996,068) 7.27 (9,000) 24.51
------- ----- --------- ----- --------- ------
End of year.................. 996,068 $7.27 1,022,734 $7.89 1,727,650 $15.30
======= ===== ========= ===== ========= ======
Exercisable as of end of
year....................... -- $ -- 225,879 $7.85 431,758 $ 8.06
======= ===== ========= ===== ========= ======
Weighted-average grant-date
fair value of options
granted:
Exercise price:
equals FMV............... -- 3.59 12.69
less than FMV............ -- 21.56 --
</TABLE>
F-64
<PAGE> 247
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
--------------------------------------- ---------------------------
WEIGHTED AVERAGE
---------------------------
RANGE OF REMAINING EXERCISE WEIGHTED AVERAGE
EXERCISE PRICES SHARES CONTRACTUAL LIFE PRICE SHARES EXERCISE PRICE
- --------------- --------- ---------------- -------- ------- -----------------
<S> <C> <C> <C> <C> <C>
$ 7.50 -- $ 7.50 577,971 7.06 $ 7.50 247,188 $7.50
8.40 -- 8.40 444,763 7.83 8.40 177,904 8.40
20.00 -- 25.25 431,916 9.14 20.51 6,666 20.00
31.00 -- 36.75 273,000 9.75 34.81 -- --
--------- ---- ------ ------- -----
$ 7.50 -- $36.75 1,727,650 8.20 $15.30 431,758 $8.06
========= ==== ====== ======= =====
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
Historical net loss......................................... $(11,531,296) $(6,892,023)
Pro forma adjustment for stock option compensation.......... (781,465) (1,524,302)
Pro forma tax benefit....................................... 312,586 609,721
------------ -----------
Pro forma net loss.......................................... $(12,000,175) $(7,806,604)
============ ===========
</TABLE>
14. RELATED PARTY TRANSACTIONS
The Company has entered into a twelve-year agreement (the "Financial
Monitoring and Oversight Agreement") with Hicks Muse & Co. Partners, L.P.
("Hicks Muse Partners") and HM2/Management Partners, L.P. ("HM2"), each of which
is an affiliate of Hicks Muse. Chancellor and the Company paid Hicks Muse
Partners an annual fee of $82,000, $200,000 and $408,000 for financial oversight
and monitoring services for the years ended December 31, 1994, 1995 and 1996,
respectively. The annual fee is adjustable each December 31, according to a
formula based on changes in the consumer price index. HM2 received fees of
approximately $0.3 million, $2.4 million and $6.2 million upon consummation of
the acquisitions of KDWB-FM, the American Media Station Group and Trefoil
Communications, Inc., respectively, and is entitled to receive a fee equal to
1.5% of the transaction value (as defined) upon the consummation of each add-on
transaction (as defined) involving Chancellor or any of its subsidiaries.
Effective April 1, 1996, the Company entered into a revised financial
monitoring and oversight agreement with Hicks & Muse & Co. Partners, L.P. and
HM2/Management Partners, L.P., each of which is an affiliate of Hicks, Muse,
Tate & Furst Incorporated. The annual fee for financial oversight and monitoring
services to the Company has been adjusted to $500,000. The annual fee is
adjustable each January 1, to an amount equal to the budgeted consolidated
annual net sales of the Company for the then-current fiscal year, multiplied by
0.25%, provided, however, that in no event shall the annual fee be less than
$500,000.
The Financial Monitoring and Oversight Agreement makes available the
resources of HM2 and Hicks Muse Partners concerning a variety of financial
matters. The services that have been and will continue to be provided by HM2 and
Hicks Muse Partners could not otherwise be obtained by Chancellor and the
Company without the addition of personnel or the engagement of outside
professional advisors.
In February of 1996, the Company lent $200,000 to an affiliate of the
Company. The loan is unsecured, does not bear interest and will be forgiven
during the next three years.
15. SUBSEQUENT EVENTS
On February 14, 1997, Chancellor Radio Broadcasting completed a private
placement of an additional $10.0 million of Convertible Preferred Stock pursuant
to its over-allotment option. The net proceeds of this offering were used to
repay borrowings under the Revolving Credit Facility.
F-65
<PAGE> 248
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On February 19, 1997, Chancellor and Chancellor Radio Broadcasting entered
into an agreement to merge with Evergreen Media Corporation ("Evergreen") in a
stock-for-stock transaction (the "Merger"), with Evergreen remaining as the
surviving corporation (the "Surviving Company"). Pursuant to the agreement,
shareholders of the Company's common stock will receive 0.9091 shares of
Evergreen's common stock. Consummation of the merger is subject to shareholder
approval and certain other closing conditions including regulatory approval.
On February 19, 1997, the Company and Evergreen entered into a joint
purchase agreement whereby in the event that consummation of the stock purchase
agreement between Evergreen and Viacom International, Inc. ("Viacom") occurs
prior to the consummation of the Merger, the Company will be required to
purchase the Viacom subsidiaries which own four of the ten Viacom stations for
$480.0 million and Evergreen will be required to purchase the Viacom
subsidiaries which own six of the ten Viacom stations for $595.0 million. In the
event that consummation of the stock purchase agreement between Evergreen and
Viacom occurs after the consummation of the Merger, the Surviving Company will
acquire the stock of certain Viacom subsidiaries which own and operate ten radio
stations in five major markets. Consummation of the transaction is dependent
upon certain closing conditions, including regulatory approval.
16. UNCERTAINTIES AND THE USE OF ESTIMATES AND ASSUMPTIONS
On February 8, 1996, the President signed into law the Telecommunications
Act of 1996. Among other things, this legislation requires the Federal
Communications Commission (the "FCC"), to relax its numerical restrictions on
local ownership and affords renewal applicants significant new protections from
competing applications for their broadcast licenses. The new legislation will
enable the Company to retain all of its radio stations and to acquire more
properties; at the same time, this legislation will also allow other broadcast
entities to increase their ownership in markets where the Company currently
operates stations. The Company's management is unable to determine the ultimate
effect of this legislation on its competitive environment.
The pending acquisition, exchange and merger agreements are subject to
various governmental approvals, including the Department of Justice under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
Federal Communications Commission.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the dates of financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual amounts could differ from those estimates.
17. RECENT ACCOUNTING PRONOUNCEMENT
The Financial Accounting Standards Board issued SFAS No. 128, "Earnings Per
Share" in March 1997, which establishes standards for computing and presenting
earnings per share. The disclosure requirements of SFAS No. 128 will be
effective for the Company's financial statements beginning in 1997. Management
has not yet determined the impact that the adoption of SFAS No. 128 will have on
the financial statements of the Company.
F-66
<PAGE> 249
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1996 1997
------------ ----------
<S> <C> <C>
Current assets:
Cash...................................................... $ 3,789 $ 5,889
Accounts receivable, net of allowance for doubtful
accounts of $1,024 and $1,182, respectively............ 46,585 63,576
Prepaid expenses and other................................ 2,754 2,887
-------- ----------
Total current assets.............................. 53,128 72,352
Restricted cash............................................. 20,363 53,750
Property and equipment, net................................. 49,123 69,581
Intangibles and other, net.................................. 551,406 970,080
Deferred financing costs, net............................... 16,723 16,827
Deferred income tax benefit................................. -- 1,183
-------- ----------
Total assets...................................... $690,743 $1,183,773
======== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable.......................................... $ 4,409 $ 4,989
Accrued liabilities....................................... 12,530 16,248
Accrued interest.......................................... 6,869 5,702
Current portion of long-term debt......................... 400 1,928
-------- ----------
Total current liabilities......................... 24,208 28,867
Long-term debt.............................................. 354,914 545,335
Deferred income taxes....................................... 2,606 --
Other....................................................... 802 997
-------- ----------
Total liabilities................................. 382,530 575,199
-------- ----------
Redeemable senior cumulative exchangeable preferred stock,
par value $.01 per share; 1,000,000 shares authorized,
issued and outstanding; preference in liquidation of
$117,670.................................................. 107,222 114,271
Redeemable cumulative exchangeable preferred stock, par
value $.01 per share; none and 3,600,000 shares
authorized, respectively, none and 2,000,000 shares issued
and outstanding, respectively; preference in liquidation
of $210,774............................................... -- 202,891
Common stockholder's equity:
Common stock, par value $.01 per share; 2,000 shares
authorized, 1,000 shares issued and outstanding........ 1 1
Additional paid-in capital................................ 219,519 322,216
Accumulated deficit....................................... (18,529) (30,805)
-------- ----------
Total stockholder's equity........................ 200,991 291,412
-------- ----------
Total liabilities and stockholder's equity........ $690,743 $1,183,773
======== ==========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-67
<PAGE> 250
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------- -------------------
1996 1997 1996 1997
------- -------- -------- --------
<S> <C> <C> <C> <C>
Gross broadcasting revenues........................ $50,759 $ 83,538 $ 79,848 $147,015
Less agency commissions............................ 6,333 10,450 9,780 18,073
------- -------- -------- --------
Net revenues.................................. 44,426 73,088 70,068 128,942
------- -------- -------- --------
Operating expenses:
Programming, technical and news.................. 7,865 12,829 13,010 26,700
Sales and promotion.............................. 12,367 20,785 19,310 36,748
General and administrative....................... 6,002 8,051 10,405 16,404
Depreciation and amortization.................... 5,148 8,605 9,675 16,714
Corporate expenses............................... 832 2,222 1,839 3,934
Merger expense................................... -- 459 -- 2,515
Stock option compensation........................ 950 950 1,900 1,900
------- -------- -------- --------
33,164 53,901 56,139 104,915
------- -------- -------- --------
Income from operations........................ 11,262 19,187 13,929 24,027
Other (income) expense:
Interest expense................................. 9,680 12,488 17,327 23,908
Other, net....................................... 92 25 98 (1,607)
------- -------- -------- --------
Income (loss) before provision for income
taxes and extraordinary loss................ 1,490 6,674 (3,496) 1,726
Provision for income taxes......................... 662 3,727 1,601 3,327
------- -------- -------- --------
Income (loss) before extraordinary loss....... 828 2,947 (5,097) (1,601)
Extraordinary loss on early extinguishment of debt,
net of income tax benefit........................ -- 7,926 4,646 10,675
------- -------- -------- --------
Net Income (loss)............................. 828 (4,979) (9,743) (12,276)
Loss on repurchase of preferred stock.............. -- -- 16,570 --
Dividends and accretion on preferred stock......... 3,183 9,987 4,843 18,122
------- -------- -------- --------
Net loss attributable to common stock......... $(2,355) $(14,966) $(31,156) $(30,398)
======= ======== ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-68
<PAGE> 251
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDER'S EQUITY (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONAL
PAID-IN ACCUMULATED
SHARES AMOUNT CAPITAL DEFICIT TOTAL
------ ------ ---------- ----------- --------
<S> <C> <C> <C> <C> <C>
Balance, January 1, 1997.................... 1,000 $1 $219,519 $(18,529) $200,991
Dividends and accretion on preferred
stock.................................. -- -- (18,122) -- (18,122)
Capital contributions, net................ -- -- 120,819 -- 120,819
Net loss.................................. -- -- -- (12,276) (12,276)
----- -- -------- -------- --------
Balance, June 30, 1997...................... 1,000 $1 $322,216 $(30,805) $291,412
===== == ======== ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-69
<PAGE> 252
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
--------------------------
1996 1997
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (9,743) $ (12,276)
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 9,675 16,714
Amortization of deferred financing costs............... 1,393 1,236
Stock option compensation.............................. 1,900 1,900
Deferred income taxes.................................. 1,539 3,327
Gain on disposition of stations........................ -- (1,409)
Extraordinary loss..................................... 4,646 10,675
Changes in assets and liabilities, net of the effects
of acquired businesses:
Accounts receivable.................................. (2,632) (3,741)
Prepaids and other................................... (1,380) 365
Accounts payable..................................... (87) (806)
Accrued liabilities.................................. (66) 1,564
Accrued interest..................................... 4,243 (1,167)
--------- ---------
Net cash provided by operating activities......... 9,488 16,382
--------- ---------
Cash flows from investing activities:
Purchases of broadcasting properties...................... (406,140) (582,383)
Dispositions of broadcasting properties................... -- 103,259
Purchases of other property and equipment................. (1,374) (3,690)
--------- ---------
Net cash used in investing activities............. (407,514) (482,814)
Cash flows from financing activities:
Proceeds from issuance of long-term debt.................. 277,628 417,632
Proceeds from borrowings under revolving debt facility.... 46,764 255,441
Repayments of long-term debt.............................. (90,885) (342,856)
Repayments of borrowings under revolving debt facility.... (68,432) (157,399)
Issuances of preferred stock.............................. 175,119 191,817
Repurchase of preferred stock............................. (95,462) --
Additional capital contributions.......................... 155,475 105,672
Distribution of additional paid in capital................ (1,038) (1,775)
Payment of preferred stock dividends...................... (506)
--------- ---------
Net cash provided by financing activities......... 398,663 468,532
--------- ---------
Net increase in cash.............................. 637 2,100
Cash, at beginning of period................................ 1,314 3,789
--------- ---------
Cash, at end of period...................................... $ 1,951 $ 5,889
========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-70
<PAGE> 253
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Chancellor
Radio Broadcasting Company ("Chancellor Radio Broadcasting") and its
subsidiaries (the "Company") have been prepared in accordance with generally
accepted accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. Operating results for the
three and six month periods ended June 30, 1997 are not necessarily indicative
of the results that may be expected for the year ending December 31, 1997.
Chancellor Radio Broadcasting is a direct subsidiary of Chancellor Broadcasting
Company ("Chancellor"). Certain prior year amounts have been reclassified to
conform with the current year's presentation, which had no effect on net income
or stockholder's equity.
2. ACQUISITIONS AND DISPOSITIONS
On January 23, 1997, the Company acquired substantially all the assets and
certain liabilities of Colfax Communications, Inc. and its affiliates ("Colfax")
for an aggregate price of $383.7 million. Liabilities assumed were limited to
certain ongoing contractual rights and obligations. The acquisition was
accounted for as a purchase. Pursuant to the acquisition agreement, at December
31, 1996 the Company had $20.4 million of cash in a restricted escrow account
which was remitted to Colfax at closing. On January 29, 1997, the Company
entered into an agreement to sell WMIL-FM and WOKY-AM, Milwaukee stations
acquired in this transaction, to Clear Channel Radio, Inc. for $41.3 million in
cash. Accordingly, theses stations were recorded as assets held for sale with no
results of operations or gain or loss recognized. Interest capitalized on this
investment amounted to $580,000. The disposition of these stations was completed
on March 31, 1997.
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Accounts receivable, net.................................. $ 13,234
Prepaid and other assets.................................. 470
Property and equipment.................................... 14,624
Goodwill and other intangibles............................ 317,894
Other noncurrent assets................................... 46
Assets held for sale...................................... 41,253
Accrued liabilities....................................... (3,821)
--------
$383,700
</TABLE>
On January 31, 1997, the Company completed the sale of WWWW-FM and WDFN-AM
in Detroit to Evergreen Media Corporation ("Evergreen") for $30.0 million in
cash. The pre-tax gain of $1.4 million is included in other income.
On February 13, 1997, the Company acquired substantially all the assets and
certain liabilities of OmniAmerica Group ("Omni") for $166.0 million of cash and
$15.0 million of Chancellor Class A Common Stock. Liabilities assumed were
limited to certain ongoing contractual rights and obligations. The acquisition
was accounted for as a purchase.
The acquisition is summarized as follows (in thousands):
<TABLE>
<S> <C>
Assets acquired and liabilities assumed:
Property and equipment.................................... $ 9,209
Goodwill and other intangibles............................ 171,837
--------
$181,046
</TABLE>
F-71
<PAGE> 254
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On February 19, 1997, Chancellor and Chancellor Radio Broadcasting entered
into an agreement to merge with Evergreen in a stock-for-stock transaction (the
"Merger"), with Evergreen remaining as the surviving corporation. Pursuant to
the agreement, shareholders of the Company's common stock will receive 0.9091
shares of Evergreen's common stock. Consummation of the merger is subject to
shareholder approval and certain other closing conditions including regulatory
approval. The Company has incurred certain costs related to the Merger which
have been expensed in the period incurred.
On February 19, 1997, the Company and Evergreen entered into a joint
purchase agreement whereby in the event that consummation of the stock purchase
agreement between Evergreen and Viacom International, Inc. ("Viacom") occurred
prior to the consummation of the Merger, the Company would be required to
purchase the Viacom subsidiaries which own four of the ten Viacom stations for
$480.0 million, plus net working capital, and Evergreen would be required to
purchase the Viacom subsidiaries which own six of the ten Viacom stations for
$595.0 million, plus net working capital. On July 2, 1997, the Company acquired
KIBB-FM and KYSR-FM in Los Angeles, WLIT-FM in Chicago and WDRQ-FM in Detroit
from Viacom for approximately $489.8 million, plus various other direct
acquisition costs (the "Chancellor Viacom Acquisition").
On March 24, 1997, the Company exchanged the West Palm Beach stations
acquired from Omni for one AM station in Sacramento and approximately $33.0
million in cash from American Radio Systems Corporation (the "American Radio
Exchange").
On July 7, 1997, the Company entered into a time brokerage agreement with
Evergreen whereby Evergreen began managing certain limited functions of the
Company's station in San Francisco which broadcasts on frequency 94.9 (formerly
KSAN-FM).
On July 14, 1997, the Company and Evergreen entered into an agreement
pursuant to which a jointly-owned affiliate of Evergreen and the Company will
acquire Katz Media Group, Inc. ("Katz"), a full-service media representation
firm, in a tender offer transaction valued at approximately $373.0 million. Debt
of Katz of approximately $218.0 million will also be assumed in the transaction.
On July 21, 1997, the Company entered into a time brokerage agreement with
Evergreen whereby Evergreen began managing certain limited functions of the
Company's stations KBGG-FM, KNEW-AM and KABL-AM in San Francisco.
On July 30, 1997, the Company entered into an agreement to acquire KXPK-FM
in Denver from Evergreen Wireless LLC (which is unrelated to Evergreen) for
$26.0 million in cash (including $1.7 million paid by the Company in escrow).
The Company also entered into an agreement to operate KXPK-FM under a time
brokerage agreement to be effective upon receipt of HSR Act approval. Although
there can be no assurance, the Company expects that the acquisition will be
completed in the first quarter of 1998, after completion of the Merger.
On August 7, 1997, the Company and Evergreen announced that they had
acquired, for $3.0 million, an option from Bonneville International Corporation
("Bonneville") to exchange Evergreen's station WTOP-AM in Washington, the
Company's stations KZLA-FM in Los Angeles and WGMS-FM in Washington and $57.0
million of cash for Bonneville's stations WDBZ-FM in New York, KLDE-FM in
Houston and KBIG-FM in Los Angeles. The option expires on December 31, 1997.
On August 11, 1997, the Company completed the sale of WDRQ-FM in Detroit to
Capital Cities/ABC for $37.0 million. The proceeds were used to repay borrowings
under Chancellor's Interim Loan (as defined).
F-72
<PAGE> 255
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following summarizes the unaudited consolidated pro forma data as
though the acquisitions of Shamrock Broadcasting Company, KIMN-FM and KALC-FM,
Colfax, Omni and KSTE-AM, the dispositions of KTBZ-FM, WWWW-FM and WDFN-AM and
the related financing transactions had occurred as of the beginning of 1996 (in
thousands, except per share amounts):
<TABLE>
<CAPTION>
SIX MONTHS ENDED SIX MONTHS ENDED
JUNE 30, 1996 JUNE 30, 1997
---------------------- ----------------------
HISTORICAL PRO FORMA HISTORICAL PRO FORMA
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
Net revenue.................................. $ 70,068 $109,422 $128,942 $131,149
Loss before extraordinary loss............... (5,097) (9,428) (1,601) (1,687)
Net loss attributable to common stock........ (31,156) (28,148) (30,398) (22,687)
</TABLE>
3. LONG-TERM DEBT
The Company's term and revolving credit facilities were refinanced on
January 23, 1997, in conjunction with the acquisition of Colfax under a new bank
credit agreement. In connection with the refinancing of the term and revolving
loan facilities in January 1997, the Company incurred an extraordinary charge to
write-off deferred finance costs of $4.6 million.
On June 5, 1997, the Company closed on the tender offer for all $60.0
million of its outstanding 12 1/2% Senior Subordinated Notes for approximately
$70.1 million, which included a premium. The redemption was funded through
additional borrowings under the bank credit agreement and resulted in an
extraordinary charge of $11.8 million.
On June 24, 1997, the Company completed its private offering of $200.0
million of Chancellor Radio Broadcasting Company's 8 3/4% Senior Notes, which
mature on June 15, 2007 and bear interest at 8.75% per annum. The proceeds were
used to pay down borrowings under the bank credit agreement, which resulted in
an extraordinary charge to write-off deferred finance costs of $1.4 million.
On July 2, 1997, the Company entered into a restated credit agreement (the
"Restated Credit Agreement") in order to finance the Chancellor Viacom
Acquisition. The Restated Credit Agreement consists of a $400.0 million term
loan facility and a $350.0 million revolving loan facility. Also, Chancellor
received an interim loan of $170.0 million (the "Interim Loan"), the proceeds
from which were contributed to Chancellor Radio Broadcasting in connection with
the Viacom acquisition.
The Restated Credit Agreement is collateralized by (i) a first priority
perfected pledge of all capital stock and notes owned by the Company and (ii) a
first priority perfected security interest in all other assets (including
receivables, contracts, contract rights, securities, patents, trademarks, other
intellectual property, inventory, equipment and real estate) owned by the
Company, excluding FCC licenses, leasehold interests in studio or office space
and leasehold and partnership interests in tower or transmitter sites in which
necessary consents to the granting of a security interest cannot be obtained
without payments to any other party or on a timely basis. The Restated Credit
Agreement is also guaranteed by the subsidiaries of Chancellor and Chancellor
Radio Broadcasting, whose guarantees are collateralized by a first priority
perfected pledge of the capital stock of Chancellor Radio Broadcasting. The term
loan facility is due in increasing quarterly installments beginning in 1997 and
matures in June 2004. All outstanding borrowings under the revolving facility
mature in June 2004. The facilities bear interest at a rate equal to, at the
Company's option, the prime rate of Bankers Trust Company, as announced from
time to time, or the London Inter-Bank Offered Rate ("LIBOR") in effect from
time to time, plus an applicable margin rate. The Company pays quarterly
commitment fees in arrears equal to either .375% or .250% per annum on the
unused portion of the Revolving Facility, depending upon whether the Company's
leverage ratio is equal to or greater than 4.5:1 or less than 4.5:1,
respectively. The bank financing facilities which existed on June 30, 1997
accrued interest at the prime rate plus 1.00% (9.50%) on $11.9 million and the
LIBOR rate plus 2.00% (7.6875%) on $135.4 million of borrowings.
F-73
<PAGE> 256
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Interim Loan is an unsecured obligation of Chancellor and is due on the
earlier of the consummation of the Merger or July 2, 1999. Outstanding
borrowings under the Interim Loan bear interest at a rate equal to the
three-month LIBOR plus an applicable margin rate beginning at 3.25% and
increasing to 9.00% at various intervals during the loan period.
Scheduled debt maturities for the Company's outstanding long-term debt
under the Restated Credit Agreement as of July 2, 1997, after completion of the
Chancellor Viacom Acquisition, for each of the next five calendar years and
thereafter were as follows, in thousands:
<TABLE>
<S> <C>
1997........................................................ $ --
1998........................................................ 20,000
1999........................................................ 50,000
2000........................................................ 60,000
2001........................................................ 60,000
2002........................................................ 70,000
Thereafter.................................................. 153,000
--------
$413,000
========
</TABLE>
4. CAPITAL STRUCTURE
During the first quarter of 1997, Chancellor completed a private placement
of $110.0 million of newly authorized 7% Convertible Preferred Stock (the
"Convertible Preferred Stock") and Chancellor Radio Broadcasting completed a
private placement of $200.0 million of newly authorized 12% Exchangeable
Preferred Stock (the "Exchangeable Preferred Stock").
Dividends on the Convertible Preferred Stock accrue from its date of
issuance and are payable quarterly commencing April 15, 1997, at a rate per
annum of 7% of the liquidation preference per share. The Convertible Preferred
Stock is convertible at the option of the holder at any time after March 23,
1997, unless previously redeemed, into Class A Common Stock of Chancellor at a
conversion price of $32.90 per share of Class A Common Stock, subject to
adjustment in certain events. In addition, after January 19, 2000, the Company
may, at its option, redeem the Convertible Preferred Stock, in whole or in part,
at specified redemption prices plus accrued and unpaid dividends through the
redemption date. Upon the occurrence of a change of control (as defined),
Chancellor must, subject to certain conditions, offer to purchase all of the
then outstanding shares of Convertible Preferred Stock at a price equal to 101%
of the liquidation preference thereof, plus accrued and unpaid dividends to the
date of purchase.
Dividends on the Exchangeable Preferred Stock will accrue from the date of
its issuance and will be payable semi-annually commencing July 15, 1997, at a
rate per annum of 12% of the liquidation preference per share. Dividends may be
paid, at the Company's option, on any dividend payment date occurring on or
prior to January 15, 2002 either in cash or in additional shares of Exchangeable
Preferred Stock. The Exchangeable Preferred Stock is redeemable at the Company's
option, in whole or in part at any time on or after January 15, 2002, at the
redemption prices set forth herein, plus accrued and unpaid dividends to the
date of redemption. In addition, prior to January 15, 2000, the Company may, at
its option, redeem the Exchangeable Preferred Stock with the net cash proceeds
from one or more Public Equity Offerings (as defined), at various redemption
prices plus accrued and unpaid dividends to the redemption date; provided,
however, that after any such redemption there is outstanding at least $150.0
million aggregate liquidation preference of Exchangeable Preferred Stock. The
Company is required, subject to certain conditions, to redeem all of the
Exchangeable Preferred Stock outstanding on January 15, 2009, at a redemption
price equal to 100% of the liquidation preference thereof, plus accrued and
unpaid dividends to the date of redemption. Upon the occurrence of a Change of
Control (as defined), the Company will, subject to certain conditions, offer to
purchase all of the then outstanding shares of Exchangeable Preferred Stock at a
price equal to 101%
F-74
<PAGE> 257
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
of the liquidation preference thereof, plus accrued and unpaid dividends to the
repurchase date. In addition, prior to January 15, 1999, upon the occurrence of
a Change of Control, the Company will have the option to redeem the Exchangeable
Preferred Stock in whole but not in part at a redemption price equal to 112% of
the liquidation preference thereof, plus accrued and unpaid dividends to the
date of redemption. The Exchangeable Preferred Stock will, with respect to
dividend rights and rights on liquidation, rank junior to the Company's 12 1/4%
Senior Cumulative Exchangeable Preferred Stock (the "Senior Exchangeable
Preferred Stock"). Subject to certain conditions, the Exchangeable Preferred
Stock is exchangeable in whole, but not in part, at the option of the Company,
on any dividend payment date for the Company's 12% subordinated exchange
debentures due 2009, including any such securities paid in lieu of cash
interest.
In addition to the accrued dividends discussed above, the recorded value of
the Senior Exchangeable Preferred Stock and the Exchangeable Preferred Stock
includes an amount for the accretion of the difference between the stock's fair
value at date of issuance and its mandatory redemption amount, calculated using
the effective interest method.
5. INCOME TAXES
Income tax expense (benefit) differs from the amount computed by applying
the federal statutory income tax rate of 34% to income (loss) before income
taxes and extraordinary loss for the following reasons, dollars in thousands:
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS ENDED
ENDED JUNE 30, JUNE 30,
-------------- -----------------
1996 1997 1996 1997
---- ------ ------- ------
<S> <C> <C> <C> <C>
U.S. federal income tax at statutory rate....... $507 $2,269 $(1,189) $ 587
State income taxes, net of federal benefit...... 89 401 (210) 104
Valuation allowance provided for loss
carryforward generated during the current
period........................................ (59) -- 2,750 --
Permanent difference............................ -- 1,072 -- 2,636
Other........................................... 125 (15) 250 --
---- ------ ------- ------
$662 $3,727 $ 1,601 $3,327
==== ====== ======= ======
</TABLE>
6. SUBSEQUENT EVENT
In July 1997, the Company incurred non-cash stock option and severance
compensation of approximately $685,000 and $1.4 million, respectively, for
terminations associated with the Merger. In addition, the Company paid $945,000
for a two year consulting and non-compete agreement which will be deferred and
amortized over the related period.
7. NEW ACCOUNTING PRONOUNCEMENTS
Statement of Financial Accounting Standard No. 128, "Earnings per Share"
was issued in February 1997, which establishes standards for computing and
presenting earnings per share (EPS) and applies to entities with publicly held
common stock or potential common stock. The disclosure requirements of SFAS No.
128 will be effective for the Company's financial statements beginning with the
annual report for 1997. Management does not believe that the implementation of
SFAS 128 will have a material effect on its financial statements.
F-75
<PAGE> 258
CHANCELLOR RADIO BROADCASTING COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Statement of Financial Accounting Standard No. 130, "Reporting
Comprehensive Income" was issued in June 1997, which establishes standards for
reporting and display of comprehensive income and its components (revenues,
expenses, gains, and losses) in a full set of general-purpose financial
statements. The reporting and display requirements of SFAS No. 130 will be
effective for the Company's financial statements beginning with the first
quarterly report for 1998. Management does not believe that the implementation
of SFAS 130 will have a material effect on its financial statements.
F-76
<PAGE> 259
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Evergreen Media Corporation:
We have audited the accompanying combined balance sheets of Riverside
Broadcasting Co., Inc. and WAXQ Inc. as of December 31, 1995 and 1996, and the
related combined statements of earnings and cash flows for each of the years in
the three-year period ended December 31, 1996. These combined financial
statements are the responsibility of the Companies' management. Our
responsibility is to express an opinion on these combined financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined financial position of Riverside
Broadcasting Inc. and WAXQ Inc. as of December 31, 1995 and 1996, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1996 in conformity with generally accepted
accounting principles.
KPMG Peat Marwick LLP
Dallas, Texas
March 14, 1997
F-77
<PAGE> 260
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
COMBINED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------ JUNE 30,
1995 1996 1997
------- ------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Current assets:
Accounts receivable, less allowance
for doubtful accounts of $99 in
1995, $208 in 1996 and $170 in
1997............................... $ 5,507 $ 9,713 $10,489
Prepaid expenses and other current
assets............................. 178 381 162
Deferred income taxes................. 45 829 829
------- ------- -------
Total current assets.......... 5,730 10,923 11,480
Property and equipment, net (note 4).... 1,075 4,177 2,668
Intangible assets, net (note 5)......... 47,422 66,626 74,038
------- ------- -------
$54,227 $81,726 $88,186
======= ======= =======
LIABILITIES AND EQUITY
Current liabilities -- accounts payable
and accrued expenses.................. $ 1,167 $ 3,669 $2,894
Deferred income taxes................... 222 4,373 4,373
Equity (note 9)......................... 52,838 73,684 80,919
Commitments and contingencies (note
10)...................................
------- ------- -------
$54,227 $81,726 $88,186
======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-78
<PAGE> 261
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
COMBINED STATEMENTS OF EARNINGS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Gross revenues.......................... $28,254 $25,862 $36,121 $14,274 $25,135
Less agency commissions and national
rep fees........................... 4,700 4,342 5,892 2,107 3,652
------- ------- ------- ------- -------
Net revenues.................. 23,554 21,520 30,229 12,167 21,483
------- ------- ------- ------- -------
Operating expenses:
Station operating expenses excluding
depreciation and amortization...... 9,212 9,069 12,447 5,192 8,893
Depreciation and amortization......... 1,662 1,676 4,528 838 1,290
Corporate general and
administrative..................... 945 980 943 510 442
------- ------- ------- ------- -------
Operating expenses................. 11,819 11,725 17,918 6,540 10,625
------- ------- ------- ------- -------
Operating income................... 11,735 9,795 12,311 5,627 10,858
Other (income) expense (note 3)......... -- -- (741) -- --
------- ------- ------- ------- -------
Earnings before income taxes....... 11,735 9,795 13,052 5,627 10,858
Income tax expense (note 6)............. 6,053 5,154 6,683 2,881 4,336
------- ------- ------- ------- -------
Net earnings.................. $ 5,682 $ 4,641 $ 6,369 $ 2,746 $ 6,522
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-79
<PAGE> 262
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
COMBINED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows provided by operating activities:
Net earnings................................... $ 5,682 $ 4,641 $ 6,369 $ 2,746 $ 6,522
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation................................ 153 168 286 84 266
Amortization of goodwill.................... 1,509 1,508 1,811 754 1,024
Changes in certain assets and liabilities:
Deferred income taxes..................... 32 110 (603) -- --
Accounts receivable, net.................. (676) 659 (4,172) (984) (776)
Prepaid expenses and other current
assets................................. 12 103 (203) 128 219
Accounts payable and accrued expenses..... (192) (483) 2,502 765 (775)
------- ------- ------- ------- -------
Net cash provided by operating
activities........................... 6,520 6,706 5,990 3,493 6,480
------- ------- ------- ------- -------
Cash flows used by investing activities --capital
expenditures................................... (150) (129) (695) (250) (417)
------- ------- ------- ------- -------
Net cash used by financing
activities -- distribution to parent........... (6,370) (6,577) (5,295) (3,243) (6,063)
------- ------- ------- ------- -------
Increase (decrease) in cash...................... -- -- -- -- --
Cash at beginning of period...................... -- -- -- -- --
------- ------- ------- ------- -------
Cash at end of period............................ $ -- $ -- $ -- $ -- $ --
======= ======= ======= ======= =======
Noncash financing activities -- contribution of
radio station net assets by parent (note 3).... $ -- $ -- $19,772 $ -- $ --
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-80
<PAGE> 263
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(1) ORGANIZATION AND BASIS OF PRESENTATION
The accompanying combined financial statements include the accounts of
Riverside Broadcasting Co., Inc. and WAXQ Inc. (collectively, the "Company").
The Company owns and operates two commercial radio stations in the New York City
market -- WLTW-FM and WAXQ-FM and is wholly owned by Viacom International Inc.
("Viacom" or "Parent"), a wholly owned subsidiary of Viacom, Inc. Significant
intercompany accounts and transactions have been eliminated in combination.
On February 16, 1997, Viacom entered into a stock purchase agreement to
sell all the issued and outstanding shares of capital stock of WAXQ Inc. and
Riverside Broadcasting Co., Inc. in the New York City market, KYSR Inc. and KIBB
Inc. in the Los Angeles market, Viacom Broadcasting East Inc. and WMZQ Inc. in
the Washington, DC market, WLIT Inc. in the Chicago market and WDRQ Inc. in the
Detroit market (collectively, the "Viacom Radio Properties") to Evergreen Media
Corporation of Los Angeles ("Evergreen"), for $1.075 billion in cash ("Proposed
Transaction"). The Proposed Transaction is expected to close after the
expiration or termination of the applicable waiting periods under the HSR Act
and approval by the Federal Communications Commission ("FCC"). Contemporaneous
with this transaction, Evergreen entered into a joint purchase agreement with
Chancellor Broadcasting Company ("Chancellor") under which Chancellor agreed to
acquire the Chicago, Detroit and Los Angeles Viacom radio properties referred to
above for $480 million from Evergreen or from Viacom directly.
The accompanying combined financial statements reflect the carve-out
historical results of operations and financial position of Riverside
Broadcasting Co., Inc. and WAXQ Inc. These financial statements are not
necessarily indicative of the results that would have occurred if the Company
had been a separate stand-alone entity during the periods presented.
The financial statements do not include Viacom's corporate assets or
liabilities not specifically identifiable to the Company. Corporate overhead
allocations have been included in the accompanying statements of earnings in
corporate general and administrative expense and station operating expenses.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Property and Equipment
Property and equipment are stated at cost. Depreciation of property and
equipment is computed using the straight-line method over the estimated useful
lives of the assets. Repair and maintenance costs are charged to expense when
incurred.
(b) Intangible Assets
Intangible assets consist primarily of broadcast licenses. The Company
amortizes such intangible assets using the straight-line method over 40 years.
The Company continually evaluates the propriety of the carrying amount of
intangible assets as well as the amortization period to determine whether
current events or circumstances warrant adjustments to the carrying value and/or
revised estimates of useful lives. This evaluation consists of the projection of
undiscounted operating income before depreciation, amortization, nonrecurring
charges and interest over the remaining amortization periods of the related
intangible assets. At this time, the Company believes that no significant
impairment of intangible assets has occurred and that no reduction of the
estimated useful lives is warranted.
(c) Barter Transactions
The Company trades commercial air time for goods and services used
principally for promotional, sales and other business activities. An asset and
liability are recorded at the fair market value of the goods or
F-81
<PAGE> 264
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
services to be received. Barter revenue is recorded and the liability relieved
when commercials are broadcast and barter expense is recorded and the asset
relieved when goods or services are received or used.
(d) Revenue Recognition
Revenue is derived primarily from the sale of commercial announcements to
local and national advertisers. Revenue is recognized as commercials are
broadcast.
(e) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred income taxes are recognized for the tax consequences in future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts at each year end based on enacted tax laws and statutory tax
rates applicable to the periods in which the differences are expected to affect
taxable earnings. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount more likely than not to be realized. Income
tax expense is the total of tax payable for the period and the change during the
period in deferred tax assets and liabilities.
(f) Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeds the fair value of the assets. Assets to be disposed
of are reported at the lower of the carrying amount or fair value less costs to
sell. The adoption of this Statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
(g) Fair Value
The carrying amount of accounts receivable and accounts payable
approximates fair value because of the short maturity of these instruments.
(h) Disclosure of Certain Significant Risks and Uncertainties
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
In the opinion of management, credit risk with respect to trade receivables
is limited due to the large number of diversified customers in the Company's
customer base. The Company performs ongoing credit evaluations of its customers
and believes that adequate allowances for any uncollectible trade receivables
are maintained. No one customer accounted for more than 10% of net revenues in
1994, 1995, or 1996.
(i) Unaudited Interim Financial Information
In the opinion of management, the unaudited interim combined financial
statements as of and for the six months ended June 30, 1996 and 1997, reflect
all adjustments, consisting of only normal and recurring items,
F-82
<PAGE> 265
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
which are necessary for a fair presentation of the results for the interim
periods presented. The results for the interim periods ended June 30, 1996 and
1997 are not necessarily indicative of results to be expected for any other
interim period or for the full year.
(3) ACQUISITIONS AND DISPOSITIONS
On August 1, 1996, Viacom exchanged the assets of KBSG-AM/FM and KNDD-FM in
Seattle for the assets of WAXQ-FM in New York. The transaction was accounted for
as a nonmonetary exchange and was based on the recorded amounts of the
nonmonetary assets relinquished. For the period from July 1, 1996 to July 31,
1996, Viacom operated WAXQ-FM under a time brokerage agreement.
Station start-up costs, including fees paid pursuant to the time brokerage
agreement, amounting to $2,431,000, were capitalized and amortized during 1996.
Acquisition-related costs are reflected in the accompanying financial statements
as other expense.
A summary of net assets relinquished by Viacom in connection with the
exchange is as follows:
<TABLE>
<S> <C>
Working capital............................................. $ 34
Property and equipment...................................... 2,693
Intangible assets........................................... 21,015
Deferred taxes.............................................. (3,970)
-------
$19,772
=======
</TABLE>
(4) PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 1995 and
1996:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL LIFE 1995 1996
----------- ------ ------
<S> <C> <C> <C>
Broadcast facilities.................................. 8-20 years $1,971 $4,783
Office equipment and other............................ 5-8 years 557 754
Construction in progress.............................. 10 389
------ ------
2,538 5,926
Accumulated depreciation.............................. 1,463 1,749
------ ------
$1,075 $4,177
====== ======
</TABLE>
(5) INTANGIBLE ASSETS
Intangible assets at December 31, 1995 and 1996 consist of broadcast
licenses which are being amortized over forty years and are presented net of
accumulated amortization of $13,177 and $14,988, respectively.
(6) INCOME TAXES
The Company's results of operations are included in the combined U.S.
federal and certain combined and separate state income tax returns of Viacom
International Inc.
The tax provisions and deferred tax liabilities presented have been
determined as if the Company were a stand-alone business filing separate tax
returns. Current tax liabilities are recorded through the equity account with
Viacom.
F-83
<PAGE> 266
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Income tax expense (benefit) consists of:
<TABLE>
<CAPTION>
1994 1995 1996
------ ------ ------
<S> <C> <C> <C>
Current:
Federal.................................................. $3,889 $3,258 $4,672
State and local.......................................... 2,132 1,786 2,614
Deferred:
Federal.................................................. 21 71 (356)
State.................................................... 11 39 (247)
------ ------ ------
$6,053 $5,154 $6,683
====== ====== ======
</TABLE>
A reconciliation of the U.S. Federal statutory tax rate to the Company's
effective tax rate on earnings before income taxes is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory U.S. tax rate..................................... 35.0% 35.0% 35.0%
Amortization of intangibles................................. 4.6 5.4 4.3
State and local taxes, net of federal tax benefit........... 11.9 12.1 11.8
Other, net.................................................. 0.1 0.1 0.1
---- ---- ----
Effective tax rate........................................ 51.6% 52.6% 51.2%
==== ==== ====
</TABLE>
Deferred tax assets and liabilities are computed by applying the U.S.
federal income tax rate in effect to the gross amounts of temporary differences
and other tax attributes. These temporary differences are primarily the result
of fixed asset basis differences and bad debt expense.
(7) DEBT AND INTEREST COST
Viacom has not allocated any portion of its debt or related interest cost
to the Company, and no portion of Viacom's debt is specifically related to the
operations of the Company. Accordingly, the Company's financial statements
include no charges for interest.
(8) RELATED PARTY TRANSACTIONS
Intercompany balances between the Company and Viacom resulting from normal
trade activity are reflected in Equity in the accompanying combined financial
statements
(see note 9).
Viacom provides services for the Company in management, accounting and
financial reporting, human resources and information systems. The allocation of
these expenses, which is generally based on revenue dollars, is reflected in the
accompanying combined financial statements as corporate general and
administrative expense. Management believes that the method of allocation of
corporate overhead is reasonable.
Viacom has a noncontributory pension plan covering substantially all of its
employees, including the employees of the Company. Costs related to these plans
are allocated to the Company based on payroll dollars. The Company recognized
expense related to these costs in the amounts of $63, $41 and $97 for 1994, 1995
and 1996, respectively. The assets and the related benefit obligation of the
plans will not be transferred to the Company upon consummation of the Proposed
Transaction, therefore, such assets and obligations are not included in the
notes to the Company's combined financial statements.
Viacom utilizes a centralized cash management system. As a result, the
Company carries minimal cash. Disbursements are funded by the Parent upon demand
and cash receipts are transferred to the Parent daily.
F-84
<PAGE> 267
RIVERSIDE BROADCASTING CO., INC. AND WAXQ INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The Company, from time to time, enters into transactions with companies
owned by or affiliated with Viacom. Generally, services received from such
related parties are charged to the Company at amounts which would be incurred in
transactions between unrelated entities.
(9) EQUITY
Equity represents Viacom's ownership interest in the recorded net assets of
the Company. All cash transactions and intercompany transactions flow through
the equity account. A summary of the activity is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
-------- -------- --------
<S> <C> <C> <C>
Balance at beginning of period.......... $ 55,462 $ 54,774 $ 52,838
Net earnings............................ 5,682 4,641 6,369
Net intercompany activity............... (6,370) (6,577) 14,477
-------- -------- --------
Balance at end of period................ $ 54,774 $ 52,838 $ 73,684
======== ======== ========
</TABLE>
(10) COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases, primarily for office space.
These leases generally contain renewal options for periods ranging from one to
ten years and require the Company to pay all executory costs such as maintenance
and insurance. Rental expense for operating leases (excluding those with lease
terms of one month or less that were not renewed) was approximately $192, $155
and $442 during 1994, 1995 and 1996, respectively.
Future minimum lease payments under noncancelable operating leases (with
initial or remaining lease terms in excess of one year) as of December 31, 1996
are as follows:
<TABLE>
<S> <C>
Year ending December 31:
1997.................................... $ 709
1998.................................... 722
1999.................................... 759
2000.................................... 795
2001.................................... 818
Thereafter.............................. 2,411
------
$6,214
======
</TABLE>
F-85
<PAGE> 268
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Evergreen Media Corporation:
We have audited the accompanying combined balance sheets of WMZQ Inc. and
Viacom Broadcasting East Inc. as of December 31, 1995 and 1996, and the related
combined statements of earnings and cash flows for each of the years in the
three-year period ended December 31, 1996. These combined financial statements
are the responsibility of the Companies' management. Our responsibility is to
express an opinion on these combined financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined financial position of WMZQ Inc.
and Viacom Broadcasting East Inc. as of December 31, 1995 and 1996, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1996 in conformity with generally accepted
accounting principles.
KPMG Peat Marwick LLP
Dallas, Texas
March 14, 1997, except for note 10,
which is as of April 14, 1997
F-86
<PAGE> 269
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
COMBINED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31
------------------ JUNE 30,
1995 1996 1997
------- ------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Current assets:
Accounts receivable, less allowance
for doubtful accounts of $150 in
1995, $235 in 1996 and $136 in
1997............................... $ 4,893 $ 5,401 $ 5,407
Prepaid expenses and other current
assets............................. 467 629 55
Deferred income taxes (note 5)........ 60 94 94
------- ------- -------
Total current assets.......... 5,420 6,124 5,556
Property and equipment, net (note 3).... 2,407 2,316 2,408
Intangible assets, net (note 4)......... 50,204 48,695 50,399
------- ------- -------
$58,031 $57,135 $58,363
======= ======= =======
LIABILITIES AND EQUITY
Current liabilities -- accounts payable
and accrued expenses.................. $ 2,411 $ 2,458 $ 1,814
Deferred income taxes (note 5).......... 1,899 2,121 2,123
Equity (note 8)......................... 53,721 52,556 54,426
Commitments and contingencies (note
9)....................................
------- ------- -------
$58,031 $57,135 $58,363
======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-87
<PAGE> 270
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
COMBINED STATEMENTS OF EARNINGS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Gross revenues................................... $21,389 $25,656 $26,584 $13,422 $13,837
Less agency commissions and national rep
fees........................................ 3,321 4,131 4,075 1,624 1,818
------- ------- ------- ------- -------
Net revenues........................... 18,068 21,525 22,509 11,798 12,019
------- ------- ------- ------- -------
Operating expenses:
Station operating expenses excluding
depreciation and amortization............... 10,398 11,445 11,362 6,394 6,043
Depreciation and amortization.................. 1,798 1,814 1,884 906 989
Corporate general and administrative........... 694 940 674 436 240
------- ------- ------- ------- -------
Operating expenses.......................... 12,890 14,199 13,920 7,736 7,272
------- ------- ------- ------- -------
Earnings before income taxes................ 5,178 7,326 8,589 4,062 4,747
Income tax expense (note 5)...................... 2,607 3,437 3,929 1,858 1,556
------- ------- ------- ------- -------
Net earnings........................... $ 2,571 $ 3,889 $ 4,660 $ 2,204 $ 3,191
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-88
<PAGE> 271
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
COMBINED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows provided by operating
activities:
Net earnings.......................... $ 2,571 $ 3,889 $ 4,660 $ 2,204 $ 3,191
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Depreciation....................... 289 305 375 150 237
Amortization of goodwill........... 1,509 1,509 1,509 756 752
Deferred income tax expense........ 323 302 188 -- --
Changes in certain assets and
liabilities, net of effects of
acquisitions:
Accounts receivable, net......... 179 (1,485) (508) (445) (6)
Prepaid expenses and other
current assets................ 14 (121) (162) (730) 574
Accounts payable and accrued
expenses...................... (559) 20 47 2,446 (644)
------- ------- ------- ------- -------
Net cash provided by operating
activities.................. 4,326 4,419 6,109 4,381 4,104
------- ------- ------- ------- -------
Cash flows used by investing
activities -- capital expenditures.... (194) (491) (284) (142) (232)
------- ------- ------- ------- -------
Cash flows used by financing
activities -- distribution to
Parent................................ (4,132) (3,928) (5,825) (4,239) (3,872)
------- ------- ------- ------- -------
Increase (decrease) in cash............. -- -- -- -- --
Cash at beginning of period............. -- -- -- -- --
------- ------- ------- ------- -------
Cash at end of period................... $ -- $ -- $ -- $ -- $ --
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-89
<PAGE> 272
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(1) ORGANIZATION AND BASIS OF PRESENTATION
The accompanying combined financial statements include the accounts of WMZQ
Inc. and Viacom Broadcasting East Inc. (collectively, the "Company"). The
Company owns and operates four commercial radio stations in the Washington, DC
market, WMZQ-FM, WJZW-FM, WBZS-AM and WZHF-AM, and is wholly owned by Viacom
International Inc. ("Viacom" or "Parent"), a wholly owned subsidiary of Viacom,
Inc. Significant intercompany accounts and transactions have been eliminated in
combination.
On February 16, 1997, Viacom International Inc. entered into a stock
purchase agreement to sell all the issued and outstanding shares of capital
stock of WAXQ Inc. and Riverside Broadcasting Co., Inc. in the New York City
market, KYSR Inc. and KIBB Inc. in the Los Angeles market, Viacom Broadcasting
East Inc. and WMZQ Inc. in the Washington, DC market, WLIT Inc. in the Chicago
market and WDRQ Inc. in the Detroit market (collectively the "Viacom Radio
Properties") to Evergreen Media Corporation for $1.075 billion in cash
("Proposed Transaction"). The Proposed Transaction is expected to close after
the expiration or termination of the applicable waiting periods under the HSR
Act and approval by the Federal Communications Commission ("FCC").
Contemporaneous with this transaction, Evergreen entered into a joint purchase
agreement with Chancellor Broadcasting Company ("Chancellor"), under which
Chancellor agreed to acquire the Chicago, Detroit and Los Angeles Viacom Radio
Properties referred to above for $480 million from Evergreen or from Viacom
directly.
The accompanying combined financial statements reflect the carve-out
historical results of operations and financial position of WMZQ Inc. and Viacom
Broadcasting East, Inc. These financial statements are not necessarily
indicative of the results that would have occurred if the Company had been a
separate stand-alone entity during the periods presented.
The financial statements do not include Viacom's corporate assets or
liabilities not specifically identifiable to the Company. Corporate overhead
allocations have been included in the accompanying statements of earnings in
corporate general and administrative expense and station operating expenses.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Property and Equipment
Property and equipment are stated at cost. Depreciation of property and
equipment is computed using the straight-line method over the estimated useful
lives of the assets. Repair and maintenance costs are charged to expense when
incurred.
(b) Intangible Assets
Intangible assets consist primarily of broadcast licenses. The Company
amortizes such intangible assets using the straight-line method over 40 years.
The Company continually evaluates the propriety of the carrying amount of
intangible assets as well as the amortization period to determine whether
current events or circumstances warrant adjustments to the carrying value and/or
revised estimates of useful lives. This evaluation consists of the projection of
undiscounted operating income before depreciation, amortization, nonrecurring
charges and interest over the remaining amortization periods of the related
intangible assets. At this time, the Company believes that no significant
impairment of intangible assets has occurred and that no reduction of the
estimated useful lives is warranted.
(c) Barter Transactions
The Company trades commercial air time for goods and services used
principally for promotional, sales and other business activities. An asset and
liability are recorded at the fair market value of the goods or
F-90
<PAGE> 273
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
services to be received. Barter revenue is recorded and the liability relieved
when commercials are broadcast and barter expense is recorded and the asset
relieved when goods or services are received or used.
(d) Revenue Recognition
Revenue is derived primarily from the sale of commercial announcements to
local and national advertisers. Revenue is recognized as commercials are
broadcast.
(e) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred income taxes are recognized for the tax consequences in future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts at each year end based on enacted tax laws and statutory tax
rates applicable to the periods in which the differences are expected to affect
taxable earnings. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount more likely than not to be realized. Income
tax expense is the total of tax payable for the period and the change during the
period in deferred tax assets and liabilities.
(f) Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeds the fair value of the assets. Assets to be disposed
of are reported at the lower of the carrying amount or fair value less costs to
sell. The adoption of this Statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
(g) Fair Value
The carrying amount of accounts receivable and accounts payable
approximates fair value because of the short maturity of these instruments.
(h) Disclosure of Certain Significant Risks and Uncertainties
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
In the opinion of management, credit risk with respect to trade receivables
is limited due to the large number of diversified customers in the Company's
customer base. The Company performs ongoing credit evaluations of its customers
and believes that adequate allowances for any uncollectible trade receivables
are maintained. No one customer accounted for more than 10% of net revenues in
1994, 1995, or 1996.
(i) Unaudited Interim Financial Information
In the opinion of management, the unaudited interim combined financial
statements as of and for the six months ended June 30, 1996 and 1997, reflect
all adjustments, consisting of only normal and recurring items,
F-91
<PAGE> 274
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
which are necessary for a fair presentation of the results for the interim
periods presented. The results for the interim periods ended June 30, 1996 and
1997 are not necessarily indicative of results to be expected for any other
interim period or for the full year.
(3) PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 1995 and
1996:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL LIFE 1995 1996
--------------- ------ ------
<S> <C> <C> <C>
Broadcast facilities................................... 8 - 20 years $2,268 $2,366
Land................................................... 440 440
Building............................................... 30 - 40 years 146 146
Office equipment and other............................. 5 - 8 years 1,866 1,808
Construction in progress............................... -- 5
------ ------
4,720 4,765
------ ------
Accumulated depreciation............................... 2,313 2,449
------ ------
$2,407 $2,316
====== ======
</TABLE>
(4) INTANGIBLE ASSETS
Intangible assets at December 31, 1995 and 1996 consist of broadcast
licenses which are being amortized over forty years and are presented net of
accumulated amortization of $10,714 and $12,223, respectively.
(5) INCOME TAXES
The Company's results of operations are included in the U.S. federal and
certain combined and separate state income tax returns of Viacom International
Inc.
The tax provisions and deferred tax liabilities presented have been
determined as if the Company were a stand-alone business filing separate tax
returns. Current tax liabilities are recorded through the equity account with
Viacom.
Income tax expense consists of:
<TABLE>
<CAPTION>
1994 1995 1996
------ ------ ------
<S> <C> <C> <C>
Current:
Federal................................................... $1,704 $2,434 $2,943
State and local........................................... 580 701 798
Deferred federal and state.................................. 323 302 188
------ ------ ------
$2,607 $3,437 $3,929
====== ====== ======
</TABLE>
F-92
<PAGE> 275
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
A reconciliation of the U.S. Federal statutory tax rate to the Company's
effective tax rate on earnings before income taxes is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory U.S. tax rate................. 35.0% 35.0% 35.0%
Amortization of intangibles............. 7.4 5.2 4.5
State and local taxes, net of federal
tax benefit........................... 7.9 6.7 6.2
Other, net.............................. 0.0 0.0 0.0
---- ---- ----
Effective tax rate.................... 50.3% 46.9% 45.7%
==== ==== ====
</TABLE>
Deferred tax assets and liabilities are computed by applying the U.S.
federal income tax rate in effect to the gross amounts of temporary differences
and other tax attributes. These temporary differences are primarily the result
of fixed asset basis differences and bad debt expense. Deferred tax assets and
liabilities relating to state income taxes are not material.
(6) DEBT AND INTEREST COST
Viacom has not allocated any portion of its debt or related interest cost
to the Company, and no portion of Viacom's debt is specifically related to the
operations of the Company. Accordingly, the Company's financial statements
include no charges for interest.
(7) RELATED PARTY TRANSACTIONS
Intercompany balances between the Company and Viacom resulting from normal
trade activity are reflected in Equity in the accompanying combined financial
statements (see note 8).
Viacom provides services for the Company in management, accounting and
financial reporting, human resources, information systems, legal, taxes and
other corporate services. The allocation of these expenses, which is generally
based on revenue dollars, is reflected in the accompanying financial statements
as corporate general and administrative expense. Management believes that the
method of allocation of corporate overhead is reasonable.
Viacom has a noncontributory pension plan covering substantially all of its
employees, including the employees of the Company. Costs related to these plans
are allocated to the Company based on payroll dollars and are included in
station operating expenses. The Company recognized expense related to these
costs in the amounts of $77, $74 and $242 for 1994, 1995 and 1996, respectively.
The assets and the related benefit obligation of the plans will not be
transferred to the Company upon consummation of the Proposed Transaction,
therefore, such assets and obligations are not included in the notes to the
Company's financial statements.
Viacom utilizes a centralized cash management system. As a result, the
Company carries minimal cash. Disbursements are funded centrally upon demand and
cash receipts are transferred to the Parent daily.
The Company, from time to time, enters into transactions with companies
owned by or affiliated with Viacom. Generally, services received from such
related parties are charged to the Company at amounts which would be incurred in
transactions between unrelated entities.
F-93
<PAGE> 276
WMZQ INC. AND VIACOM BROADCASTING EAST INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(8) EQUITY
Equity represents Viacom's ownership interest in the recorded net assets of
the Company. All cash transactions and intercompany transactions flow through
the equity account. A summary of the activity is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Balance at beginning of period......................... $55,321 $53,760 $53,721
Net earnings........................................... 2,571 3,889 4,660
Net intercompany activity.............................. (4,132) (3,928) (5,825)
------- ------- -------
Balance at end of period............................... $53,760 $53,721 $52,556
======= ======= =======
</TABLE>
(9) COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases, primarily for office space.
These leases generally contain renewal options for periods ranging from 1 to 10
years and require the Company to pay all executory costs such as maintenance and
insurance. Rental expense for operating leases (excluding those with lease terms
of one month or less that were not renewed) was approximately $332, $356 and
$373 during 1994, 1995 and 1996, respectively.
Future minimum lease payments under noncancelable operating leases (with
initial or remaining lease terms in excess of one year) as of December 31, 1996
are as follows:
<TABLE>
<S> <C>
Year ending December 31:
1997........................................................ $ 506
1998........................................................ 523
1999........................................................ 310
2000........................................................ 222
2001........................................................ 200
Thereafter.................................................. 814
------
$2,575
======
</TABLE>
(10) SUBSEQUENT EVENT
On April 14, 1997, Evergreen Media Corporation and Chancellor Broadcasting
Company entered into an agreement with ABC Radio ("ABC"), a division of The Walt
Disney Company, whereby ABC will purchase from Evergreen and Chancellor two
radio stations, WDRQ-FM and WJZW-FM for a total of $105 million.
F-94
<PAGE> 277
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Beasley FM Acquisition Corp.:
We have audited the accompanying balance sheet of WDAS-AM/FM (station owned
and operated by Beasley FM Acquisition Corp.) as of December 31, 1996, and the
related statements of earnings and station equity and cash flows for the year
then ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of WDAS-AM/FM as of December
31, 1996, and the results of its operations and its cash flows for the year then
ended in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
St. Petersburg, Florida
March 28, 1997
F-95
<PAGE> 278
WDAS-AM/FM
(STATION OWNED AND OPERATED BY
BEASLEY FM ACQUISITION CORP.)
BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
1996 1997
------------ -----------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C>
Current assets:
Cash...................................................... $ 2,111 $ 2,805
Accounts receivable, less allowance for doubtful accounts
of $166 and $138 in 1996 and 1997...................... 3,693 2,938
Trade sales receivable.................................... 359 29
Prepaid expense and other................................. 150 130
------- -------
Total current assets.............................. 6,313 5,902
Property and equipment, net (note 2)........................ 3,297 3,523
Notes receivable from related parties (note 5).............. 2,766 3,625
Intangibles, less accumulated amortization.................. 17,738 17,122
------- -------
$30,114 $30,172
======= =======
LIABILITIES AND STATION EQUITY
Current liabilities:
Current installments of long-term debt (note 3)........... $ 49 $ 49
Notes payable to related parties (note 5)................. 352 494
Accounts payable.......................................... 269 191
Accrued expenses.......................................... 515 313
Trade sales payable....................................... 39 12
------- -------
Total current liabilities......................... 1,224 1,059
Long-term debt, less current installments (note 3).......... 627 627
------- -------
Total liabilities................................. 1,851 1,686
Station equity.............................................. 28,263 28,486
Commitments and related party transactions (notes 4 and
5)........................................................
------- -------
$30,114 $30,172
======= =======
</TABLE>
See accompanying notes to financial statements.
F-96
<PAGE> 279
WDAS-AM/FM
(STATION OWNED AND OPERATED BY
BEASLEY FM ACQUISITION CORP.)
STATEMENTS OF EARNINGS AND STATION EQUITY
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED ENDED MARCH 31,
DECEMBER 31, ------------------
1996 1996 1997
------------ ------- -------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C>
Net revenues................................................ $14,667 $ 2,623 $ 3,000
------- ------- -------
Costs and expenses:
Program and production.................................... 2,028 445 620
Technical................................................. 212 59 50
Sales and advertising..................................... 3,514 660 802
General and administrative................................ 2,005 497 459
------- ------- -------
7,759 1,661 1,931
------- ------- -------
Operating income, excluding items shown separately
below........................................... 6,908 962 1,069
Management fees (note 5).................................... (620) (156) (128)
Depreciation and amortization............................... (2,763) (651) (657)
Interest income (expense), net.............................. (40) (13) 7
Other....................................................... -- -- (78)
------- ------- -------
Net income........................................ 3,485 142 213
Station equity, beginning of period......................... 25,367 25,367 28,273
Forgiveness of related party note receivable (note 5)....... (589) -- --
------- ------- -------
Station equity, end of period............................... $28,263 $25,509 $28,486
======= ======= =======
</TABLE>
See accompanying notes to financial statements.
F-97
<PAGE> 280
WDAS-AM/FM
(STATION OWNED AND OPERATED BY BEASLEY FM ACQUISITION CORP.)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED ENDED MARCH 31,
DECEMBER 31, -------------------------------
1996 1996 1997
------------ --------------- -------------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income........................................... $ 3,485 $ 142 $ 213
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization..................... 2,763 651 657
Allowance for doubtful accounts................... 8 (56) (28)
Decrease (increase) in receivables................ (398) 792 1,113
(Increase) decrease) in prepaid expense and other
assets.......................................... (96) (104) 20
Decrease in payables and accrued expenses......... (507) (331) (297)
------- ----- ------
Net cash provided by operating activities.... 5,255 1,094 1,678
------- ----- ------
Cash flows from investing activities -- capital
expenditures for property and equipment.............. (775) (572) (267)
------- ----- ------
Cash flows from financing activities:
Proceeds from issuance of indebtedness............... 676 - -
Principal payments on indebtedness................... (820) - -
Payment of loan fees................................. (6) - -
Net change in borrowings to/from affiliates.......... (2,647) (305) (717)
------- ----- ------
Net cash used in financing activities........ (2,797) (305) (717)
------- ----- ------
Net increase in cash................................... 1,683 217 694
Cash at beginning of period............................ 428 428 2,111
------- ----- ------
Cash at end of period.................................. $ 2,111 $ 645 $2,805
======= ===== ======
Noncash transactions:
Forgiveness of related note receivable
Release of WDAS-AM/FM's obligations under a note
payable which related to obtaining an easement.
WDAS-AM/FM is now directly responsible for the costs
necessary to obtain this easement and has included
these costs in accrued expenses in the accompanying
balance sheet........................................ $ 350
=======
</TABLE>
See accompanying notes to financial statements.
F-98
<PAGE> 281
WDAS-AM/FM
(STATION OWNED AND OPERATED BY BEASLEY FM ACQUISITION CORP.)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1996
(IN THOUSANDS)
(1) ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Organization
WDAS-AM/FM (the Station) is a radio station operating in Philadelphia,
Pennsylvania. The assets, liabilities and operations of WDAS-AM/FM are part of
Beasley FM Acquisition Corp. (BFMA). These financial statements reflect only the
assets, liabilities and operations relating to radio station WDAS-AM/FM and are
not representative of the financial statements of BFMA.
(b) Revenue Recognition
Revenue is recognized as advertising air time is broadcast and is net of
advertising agency commissions.
(c) Property and Equipment
Property and equipment are stated at cost. Depreciation is calculated using
the straight-line method over the estimated lives of the assets, which range
from 5 to 31 years.
(d) Intangibles
Intangibles consist primarily of FCC licenses, which are amortized
straight-line over ten years. Other intangibles are amortized straight-line over
5 to 10 years.
(e) Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed Of
BFMA adopted the provisions of Statement of Financial Accounting Standards
No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed of, on January 1, 1996. This Statement requires that
long-lived assets and certain identifiable intangibles be reviewed for
impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. Recoverability of assets to
be held and used is measured by a comparison of the carrying amount of an asset
to future net cash flows expected to be generated by the asset. If such assets
are considered to be impaired, the impairment to be recognized is measured by
the amount by which the carrying amount of the assets exceed the fair value of
the assets. Assets to be disposed of are reported at the lower of the carrying
amount or fair value less costs to sell. Adoption of this Statement did not have
a material impact on the Station's financial position, results of operations, or
liquidity.
(f) Barter Transactions
Trade sales are recorded at the fair value of the products or services
received and totaled approximately $676 for the year ended December 31, 1996.
Products and services received and expensed totaled approximately $449 for the
year ended December 31, 1996.
(g) Income Taxes
BFMA has elected to be treated as an "S" Corporation under provisions of
the Internal Revenue Code. Under this corporate status, the stockholders of BFMA
are individually responsible for reporting their share of taxable income or
loss. Accordingly, no provision for federal or state income taxes has been
reflected in the accompanying financial statements.
F-99
<PAGE> 282
WDAS-AM/FM
(STATION OWNED AND OPERATED BY BEASLEY FM ACQUISITION CORP.)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(h) Defined Contribution Plan
BFMA has a defined contribution plan which conforms with Section 401(k) of
the Internal Revenue Code. Under this plan, employees may contribute a minimum
of 1% of their compensation (no maximum) to the Plan. The Internal Revenue Code,
however, limited contributions to $9,500 in 1996. There are no employer matching
contributions.
(i) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amount of revenues and expenses during the
reporting period. Actual results could differ from these estimates. To the
extent management's estimates prove to be incorrect, financial results for
future periods may be adversely affected.
(j) Interim Financial Statements
In the opinion of management, the accompanying unaudited interim financial
statements contain all adjustments, consisting of normal recurring accruals,
necessary to present fairly the financial position, results of operations, and
cash flows of the Station for the three-month periods ended March 31, 1997 and
1996 and as of June 30, 1997.
(2) PROPERTY AND EQUIPMENT
Property and equipment, at cost, is comprised of the following at December
31, 1996:
<TABLE>
<S> <C>
Land, buildings, and improvements........................... $2,204
Broadcast equipment......................................... 1,200
Office equipment and other.................................. 477
Transportation equipment.................................... 79
------
3,960
Less accumulated depreciation..................... (663)
------
$3,297
======
</TABLE>
(3) LONG-TERM DEBT
BFMA and six affiliates (the Group) refinanced their $100,000 revolving
credit loan on June 24, 1996. Under terms of the new agreement, the Group was
provided a revolving credit loan with an initial maximum commitment of $115,000.
The credit agreement was subsequently amended and the maximum commitment was
increased to $120,000. The Group's borrowings under the revolving credit loan
totaled $115,784 at December 31, 1996, of which $676 was allocated to
WDAS-AM/FM. The loan bears interest at either the base rate or LIBOR plus a
margin which is determined by the Group's debt to cash flow ratio. The base rate
is equal to the higher of the prime rate or the overnight federal funds
effective rate plus 0.5%. At December 31, 1996, the revolving credit loan
carried interest at an average rate of 8.61%. Interest is generally payable
monthly. The Group has entered into interest rate hedge agreements as discussed
in note 6.
The amount available under the Group's revolving credit loan will be
reduced quarterly beginning September 30, 1997 through its maturity on December
31, 2003. The loan agreement includes restrictive covenants and requires the
Group to maintain certain financial ratios. The loans are secured by the common
stock and substantially all assets of the Group.
F-100
<PAGE> 283
WDAS-AM/FM
(STATION OWNED AND OPERATED BY BEASLEY FM ACQUISITION CORP.)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
Annual maturities on the Group's revolving credit loan for the next five
years are as follows:
<TABLE>
<CAPTION>
DEBT
MATURITIES
----------
<S> <C>
1997........................................................ $ 8,434
1998........................................................ 12,650
1999........................................................ 13,800
2000........................................................ 14,950
2001........................................................ 15,525
Thereafter.................................................. 50,425
--------
Total............................................. $115,784
========
</TABLE>
S-AM/FM paid interest of approximately $79 in 1996.
(4) COMMITMENTS
On September 19, 1996, BFMA entered into an asset purchase agreement (APA)
with Evergreen Media Corporation of Los Angeles (Evergreen) for the sale of
WDAS-AM/FM. Under the terms of the APA, BFMA will convey substantially all of
the assets used in the operation of the station to Evergreen in exchange for a
purchase price of $103,000, subject to adjustment, to be paid in cash. BFMA
expects to close on this sale before July 1, 1997.
WDAS-AM/FM leases facilities and a tower under 10-year operating leases
which expire in July 2004 and January 2007, respectively. WDAS-AM/FM also leases
certain other office equipment on a month-to-month basis. Lease expense was
approximately $215 in 1996. Future minimum lease payments by year are summarized
as follows:
<TABLE>
<S> <C>
1997........................................................ $ 236
1998........................................................ 247
1999........................................................ 258
2000........................................................ 270
2001........................................................ 283
Thereafter.................................................. 1,275
------
$2,569
======
</TABLE>
In the normal course of business, the Station is party to various legal
matters. The ultimate disposition of these matters will not, in management's
judgment, have a material adverse effect on the Station's financial position.
(5) RELATED PARTY TRANSACTIONS
The Company has a management agreement with Beasley Management Company, an
affiliate of the Company's principal stockholder. Management fee expense under
the agreement was $620 in 1996.
The notes receivable from/payable to related parties are non-interest
bearing and are due on demand. A note receivable due from a related party of
$589 was forgiven in 1996.
F-101
<PAGE> 284
WDAS-AM/FM
(STATION OWNED AND OPERATED BY BEASLEY FM ACQUISITION CORP.)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(6) FINANCIAL INSTRUMENTS
WDAS-AM/FM's significant financial instruments and the methods used to
estimate their fair value are as follows:
Revolving credit loan -- The fair value approximates carrying value
due to the loan being refinanced on June 24, 1996 and the interest rate
being based on current market rates.
Notes receivable from/payable to related parties -- It is not
practicable to estimate the fair value of these notes payable due to their
related party nature.
Interest rate swap, cap and collar agreements -- The Group entered
into an interest rate swap agreement with a notional amount of $15,000, an
interest rate cap agreement with a notional amount of $3,100, and an
interest rate collar agreement with a notional amount of $15,000 to act as
a hedge by reducing the potential impact of increases in interest rates on
the revolving credit loan. These agreements expire on various dates in
1999. The Group is exposed to credit loss in the event of nonperformance by
the other parties to the agreements. The Group, however, does not
anticipate nonperformance by the counterparties. The fair value of the
interest rate swap agreement is estimated using the difference between the
present value of discounted cash flows using the base rate stated in the
swap agreement (5.37%) and the present value of discounted cash flows using
the LIBOR rate at December 31, 1996. The fair values of the interest rate
cap agreement, which establishes a maximum base rate of 7.50%, and the
interest rate collar agreement, which establishes a minimum base rate of
4.93% and a maximum base rate of 6%, are estimated based on the amounts the
Group would expect to receive or pay to terminate the agreement. The
estimated fair value of each of these agreements is negligible.
F-102
<PAGE> 285
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Chancellor Broadcasting Company:
We have audited the accompanying combined balance sheets of KYSR Inc. and
KIBB Inc. as of December 31, 1995 and 1996, and the related combined statements
of operations and cash flows for each of the years in the three-year period
ended December 31, 1996. These combined financial statements are the
responsibility of the Companies' management. Our responsibility is to express an
opinion on these combined financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined financial position of KYSR Inc.
and KIBB Inc. as of December 31, 1995 and 1996, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
KPMG Peat Marwick LLP
Dallas, Texas
March 14, 1997
F-103
<PAGE> 286
KYSR INC. AND KIBB INC.
COMBINED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------- JUNE 30,
1995 1996 1997
-------- -------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Current assets:
Accounts receivable, less allowance for doubtful accounts
of $218 in 1995 and $246 in 1996 and $321 in 1997...... $ 6,253 $ 7,283 $ 7,403
Prepaid expenses and other................................ 412 609 18
Deferred income taxes (note 5)............................ 89 101 101
-------- -------- --------
Total current assets.............................. 6,754 7,993 7,522
Property and equipment, net (note 3)........................ 4,172 4,082 4,195
Intangible assets, net (note 4)............................. 116,946 113,644 111,984
Other assets, net........................................... 22 22 22
-------- -------- --------
$127,894 $125,741 $123,723
======== ======== ========
LIABILITIES AND EQUITY
Current liabilities -- accounts payable and accrued
expenses.................................................. $ 3,883 $ 3,624 $ 2,082
Deferred income taxes (note 5).............................. 9,683 11,027 11,027
Equity (note 8)............................................. 114,328 111,090 110,614
Commitments and contingencies (note 9)......................
-------- -------- --------
$127,894 $125,741 $123,723
======== ======== ========
</TABLE>
See accompanying notes to combined financial statements.
F-104
<PAGE> 287
KYSR INC. AND KIBB INC.
COMBINED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Gross revenues.......................... $28,590 $30,571 $33,769 $15,762 $16,784
Less agency commissions and national
rep fees........................... 4,490 4,882 5,462 2,196 2,385
------- ------- ------- ------- -------
Net revenues.................. 24,100 25,689 28,307 13,566 14,399
------- ------- ------- ------- -------
Operating expenses:
Station operating expenses, excluding
depreciation and amortization...... 13,407 12,901 13,378 6,834 7,119
Depreciation and amortization......... 3,640 3,661 3,627 1,826 1,844
Corporate general and
administrative..................... 892 1,094 844 542 302
------- ------- ------- ------- -------
Operating expenses................. 17,939 17,656 17,849 9,202 9,265
------- ------- ------- ------- -------
Operating income................... 6,161 8,033 10,458 4,364 5,134
Interest expense (note 7)............... 6,374 6,374 6,374 3,187 3,178
------- ------- ------- ------- -------
Earnings (loss) before income taxes... (213) 1,659 4,084 1,177 1,956
Income tax expense (benefit) (note 5)... (70) 699 1,694 494 296
------- ------- ------- ------- -------
Net earnings (loss)........... $ (143) $ 960 $ 2,390 $ 683 $ 1,660
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-105
<PAGE> 288
KYSR INC. AND KIBB INC.
COMBINED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
------------------------ -----------------
1994 1995 1996 1996 1997
------ ------ ------ ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows provided by operating activities:
Net earnings (loss).......................... $ (143) $ 960 $2,390 $ 683 $ 1,660
Adjustments to reconcile net earnings (loss)
to net cash provided by operating
activities:
Depreciation.............................. 338 359 325 175 193
Amortization of intangibles............... 3,302 3,302 3,302 1,651 1,651
Deferred tax expense...................... 1,597 1,412 1,332 -- --
Changes in certain assets and liabilities:
Accounts receivable, net................ (1,452) (120) (1,030) (330) (120)
Prepaid expenses and other current
assets............................... 372 (149) (197) (1,468) 591
Accounts payable and accrued expenses... (345) 265 (259) 2,236 (1,542)
------ ------ ------ ------- -------
Net cash provided by operating
activities......................... 3,669 6,029 5,863 2,947 2,433
------ ------ ------ ------- -------
Cash used by investing activities -- capital
expenditures................................. (280) (223) (235) (80) (296)
------ ------ ------ ------- -------
Cash flows used by financing
activities -- distributions to Parent........ (3,389) (5,806) (5,628) (2,867) (2,137)
------ ------ ------ ------- -------
Increase (decrease) in cash.................... -- -- -- -- --
Cash at beginning of period.................... -- -- -- -- --
------ ------ ------ ------- -------
Cash at end of period.......................... $ -- $ -- $ -- $ -- $ --
====== ====== ====== ======= =======
</TABLE>
See accompanying notes to combined financial statements.
F-106
<PAGE> 289
KYSR INC. AND KIBB INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(1) ORGANIZATION AND BASIS OF PRESENTATION
The accompanying combined financial statements include the accounts of KYSR
Inc. and KIBB Inc. (collectively, the "Company"). The Company owns and operates
two commercial radio stations in the Los Angeles market, KYSR-FM and KIBB-FM,
and is wholly owned by Viacom International Inc. ("Viacom" or "Parent"), a
wholly owned subsidiary of Viacom, Inc. Significant intercompany balances and
transactions have been eliminated in combination.
On February 16, 1997, Viacom entered into a stock purchase agreement to
sell all the issued and outstanding shares of capital stock of WAXQ Inc. and
Riverside Broadcasting Co., Inc. in the New York City market, KYSR Inc. and KIBB
Inc. in the Los Angeles market, Viacom Broadcasting East Inc. and WMZQ Inc. in
the Washington, DC market, WLIT Inc. in the Chicago market and WDRQ Inc. in the
Detroit market (collectively, the "Viacom Radio Properties") to Evergreen Media
Corporation of Los Angeles ("Evergreen"), for $1.075 billion in cash ("Proposed
Transaction"). The Proposed Transaction is expected to close after the
expiration or termination of the applicable waiting periods under the HRS Act
and approval by the Federal Communications Commission ("FCC"). Contemporaneous
with this transaction, Evergreen entered into a joint purchase agreement with
Chancellor Broadcasting Company ("Chancellor") under which Chancellor agreed to
acquire the Chicago, Detroit and Los Angeles Viacom Radio Properties referred to
above for $480 million from Evergreen or from Viacom directly.
The accompanying combined financial statements reflect the carve-out
historical results of operations and financial position of KYSR Inc. and KIBB
Inc. These financial statements are not necessarily indicative of the results
that would have occurred if the Company had been a separate stand-alone entity
during the period presented.
The combined financial statements do not include Viacom's corporate assets
or liabilities not specifically identifiable to the Company. Corporate overhead
allocations have been included in the accompanying combined statements of
earnings in corporate general and administrative expense and station operating
expenses.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Property and Equipment
Property and equipment are stated at cost. Depreciation of property and
equipment is computed using the straight-line method over the estimated useful
lives of the assets. Repair and maintenance costs are charged to expense when
incurred.
(b) Intangible Assets
Intangible assets consist primarily of broadcast licenses. The Company
amortizes such intangible assets using the straight-line method over 40 years.
The Company continually evaluates the propriety of the carrying amount of
intangible assets as well as the amortization period to determine whether
current events or circumstances warrant adjustments to the carrying value and/or
revised estimates of useful lives. This evaluation consists of the projection of
undiscounted operating income before depreciation, amortization, nonrecurring
charges and interest over the remaining amortization periods of the related
intangible assets. At this time, the Company believes that no significant
impairment of intangible assets has occurred and that no reduction of the
estimated useful lives is warranted.
F-107
<PAGE> 290
KYSR INC. AND KIBB INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(c) Barter Transactions
The Company trades commercial air time for goods and services used
principally for promotional, sales and other business activities. An asset and
liability are recorded at the fair market value of the goods or services to be
received. Barter revenue is recorded and the liability relieved when commercials
are broadcast and barter expense is recorded and the asset relieved when goods
or services are received or used.
(d) Revenue Recognition
Revenue is derived primarily from the sale of commercial announcements to
local and national advertisers. Revenue is recognized as commercials are
broadcast.
(e) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred income taxes are recognized for the tax consequences in future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts at each year end based on enacted tax laws and statutory tax
rates applicable to the periods in which the differences are expected to affect
taxable earnings. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount more likely than not to be realized. Income
tax expense is the total of tax payable for the period and the change during the
period in deferred tax assets and liabilities.
(f) Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeds the fair value of the assets. Assets to be disposed
of are reported at the lower of the carrying amount or fair value less costs to
sell. The adoption of this Statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
(g) Fair Value
The carrying amount of accounts receivable and accounts payable
approximates fair value because of the short maturity of these instruments.
(h) Disclosure of Certain Significant Risks and Uncertainties
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
In the opinion of management, credit risk with respect to trade receivables
is limited due to the large number of diversified customers in the Company's
customer base. The Company performs ongoing credit evaluations of its customers
and believes that adequate allowances for any uncollectible trade receivables
are maintained. No one advertiser accounted for more than 10% of net revenues in
1994, 1995, or 1996. Certain
F-108
<PAGE> 291
KYSR INC. AND KIBB INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
advertisers purchase the advertising of the stations through a third party
buying service. Approximately 22%, 20% and 19% of total revenue was derived
through the use of this service in 1994, 1995 and 1996, respectively.
(i) Unaudited Interim Financial Information
In the opinion of management, the unaudited interim combined financial
statements as of and for the six months ended June 30, 1996 and 1997, reflect
all adjustments, consisting of only normal and recurring items, which are
necessary for a fair presentation of the results for the interim periods
presented. The results for the interim periods ended June 30, 1996 and 1997 are
not necessarily indicative of results to be expected for any other interim
period or for the full year.
(3) PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 1995 and
1996:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL LIFE 1995 1996
----------- ------ ------
<S> <C> <C> <C>
Land.................................................... $2,875 $2,875
Building................................................ 40 years 474 474
Broadcast facilities.................................... 8-20 years 1,501 1,572
Office equipment and other.............................. 5-8 years 725 902
Construction in progress................................ 36 24
------ ------
5,611 5,847
Accumulated depreciation................................ 1,439 1,765
------ ------
$4,172 $4,082
====== ======
</TABLE>
(4) INTANGIBLE ASSETS
Intangible assets at December 31, 1995 and 1996 consist of broadcast
licenses which are being amortized over forty years and are presented net of
accumulated amortization of $15,148 and $18,450, respectively.
(5) INCOME TAXES
The Company's results of operations are included in the combined U.S.
federal and certain combined and separate state income tax returns of Viacom
International Inc.
The tax provisions and deferred tax liabilities presented have been
determined as if the Company were a stand-alone business filing separate tax
returns. Current tax liabilities are recorded through the equity account with
Viacom.
Income tax expense (benefit) consists of:
<TABLE>
<CAPTION>
1994 1995 1996
------- ----- ------
<S> <C> <C> <C>
Current:
Federal.................................................. $(1,289) $(551) $ 278
State and local.......................................... (378) (162) 84
Deferred federal........................................... 1,597 1,412 1,332
------- ----- ------
$ (70) $ 699 $1,694
======= ===== ======
</TABLE>
F-109
<PAGE> 292
KYSR INC. AND KIBB INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
A reconciliation of the U.S. Federal statutory tax rate to the Company's
effective tax rate on earnings (loss) before income taxes is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory U.S. tax rate..................................... 35.0% 35.0% 35.0%
State and local taxes, net of federal tax benefit........... 6.2 6.2 6.1
Other, net.................................................. (8.3) 0.9 0.4
---- ---- ----
Effective tax rate.......................................... 32.9% 42.1% 41.5%
==== ==== ====
</TABLE>
Deferred tax assets and liabilities are computed by applying the U.S.
federal income tax rate in effect to the gross amounts of temporary differences
and other tax attributes. These temporary differences are primarily the result
of fixed asset basis differences and bad debt expense. Deferred tax assets and
liabilities relating to state income taxes are not material.
(6) DEBT AND INTEREST COST
Viacom has not allocated any portion of its debt or related interest cost
to the Company, and no portion of Viacom's debt is specifically related to the
operations of the Company.
(7) RELATED PARTY TRANSACTIONS
Intercompany balances between the Company and Viacom resulting from normal
trade activity are reflected in Equity in the accompanying combined financial
statements (see note 8).
On January 25, 1990, KYSR, Inc., formerly KXEZ, Inc., issued an
intercompany demand note to Viacom in the amount of $66,400. The note bears
interest at 9.6% per year payable on the last day of each calendar year. The
principal and final interest payment are payable on January 25, 2000. However,
immediately prior to closing of the Proposed Transaction, all debts between the
Company and Viacom will be canceled. As such, the promissory note issued to
Viacom is reflected as an increase to equity and included in intercompany
activity in the amount of $66,400 at December 31, 1995 and 1996 (see note 8).
Viacom provides services for the Company in management, accounting and
financial reporting, human resources, information systems, legal, taxes and
other corporate services. The allocation of these expenses, which is generally
based on revenue dollars, is reflected in the accompanying combined financial
statements as corporate general and administrative expense. Management believes
that the method of allocation of overhead is reasonable.
Viacom has a noncontributory pension plan covering substantially all of its
employees, including the employees of the Company. Costs related to this plan
are allocated to the Company based on payroll dollars and are included in
station operating expenses. The Company recognized expense related to this plan
in the amounts of $70, $56 and $191 for 1994, 1995 and 1996, respectively. The
assets and the related benefit obligation of the plan will not be transferred to
the Company upon consummation of the Proposed Transaction, therefore, such
assets and obligations are not included in the notes to the Company's combined
financial statements.
Viacom utilizes a centralized cash management system. As a result, the
Company carries minimal cash. Disbursements are funded by the Parent upon demand
and cash receipts are transferred to the Parent daily.
The Company, from time to time, enters into transactions with companies
owned by or affiliated with Viacom. Generally, services rendered from such
related parties are charged to the Company at amounts which would be incurred in
transactions between unrelated entities.
F-110
<PAGE> 293
KYSR INC. AND KIBB INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(8) EQUITY
Equity represents Viacom's ownership interest in the recorded net assets of
the Company. All cash transactions and intercompany transactions flow through
the equity account. A summary of the activity is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
-------- -------- --------
<S> <C> <C> <C>
Balance at beginning of period....................... $122,706 $119,174 $114,328
Net earnings (loss).................................. (143) 960 2,390
Net intercompany activity............................ (3,389) (5,806) (5,628)
-------- -------- --------
Balance at end of period............................. $119,174 $114,328 $111,090
======== ======== ========
</TABLE>
(9) COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases, primarily for office space.
These leases generally contain renewal options for periods ranging from one to
ten years and require the Company to pay all executory costs such as maintenance
and insurance. Rental expense for operating leases (excluding those with lease
terms of one month or less that were not renewed) was approximately $377, $365
and $405 during 1994, 1995 and 1996, respectively.
Future minimum lease payments under noncancelable operating leases (with
initial or remaining lease terms in excess of one year) as of December 31, 1996
are as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31:
- ------------
<S> <C> <C>
1997.................................................................. $ 365
1998.................................................................. 366
1999.................................................................. 312
2000.................................................................. 19
Thereafter............................................................ --
------
$1,062
======
</TABLE>
F-111
<PAGE> 294
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Chancellor Broadcasting Company:
We have audited the accompanying balance sheets of WLIT Inc. as of December
31, 1995 and 1996, and the related statements of earnings and cash flows for
each of the years in the three-year period ended December 31, 1996. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of WLIT Inc. as of December 31,
1995 and 1996, and the results of its operations and its cash flows for each of
the years in the three-year period ended December 31, 1996, in conformity with
generally accepted accounting principles.
KPMG Peat Marwick LLP
Dallas, Texas
March 14, 1997
F-112
<PAGE> 295
WLIT INC.
BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------- JUNE 30,
1995 1996 1997
------- ------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Current assets:
Accounts receivable, less allowance for doubtful accounts
of $79 in 1995 and $87 in 1996 and $110 in 1997........ $ 3,110 $ 3,627 $ 3,836
Prepaid expenses and other current assets................. 592 490 200
Deferred income taxes (note 5)............................ 37 44 44
------- ------- -------
Total current assets.............................. 3,739 4,161 4,080
Property and equipment, net (note 3)........................ 461 457 545
Intangible assets, net (note 4)............................. 16,958 16,415 16,143
------- ------- -------
$21,158 $21,033 $20,768
======= ======= =======
LIABILITIES AND EQUITY
Current liabilities -- accounts payable and accrued
expenses.................................................. $ 1,442 $ 1,195 $ 1,376
Deferred income taxes (note 5).............................. 58 53 53
Equity (note 8)............................................. 19,658 19,785 19,339
Commitment and contingencies (note 9).......................
------- ------- -------
$21,158 $21,033 $20,768
======= ======= =======
</TABLE>
See accompanying notes to financial statements.
F-113
<PAGE> 296
WLIT INC.
STATEMENTS OF EARNINGS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------- ----------------
1994 1995 1996 1996 1997
------- ------- ------- ------ -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Gross revenues................................ $14,367 $16,720 $18,294 $8,080 $10,035
Less agency commissions and national rep
fees..................................... 2,523 2,848 3,071 1,144 1,410
------- ------- ------- ------ -------
Net revenues........................ 11,844 13,872 15,223 6,936 8,625
------- ------- ------- ------ -------
Operating expenses:
Station operating expenses excluding
depreciation and amortization............ 6,555 6,977 7,508 3,839 4,221
Depreciation and amortization............... 655 653 659 327 340
Corporate general and administrative........ 478 630 479 274 172
------- ------- ------- ------ -------
Operating expenses....................... 7,688 8,260 8,646 4,440 4,733
------- ------- ------- ------ -------
Earnings before income taxes............. 4,156 5,612 6,577 2,496 3,892
Income tax expense (note 5)................... 1,804 2,359 2,728 1,048 1,280
------- ------- ------- ------ -------
Net earnings........................ $ 2,352 $ 3,253 $ 3,849 $1,448 $ 2,612
======= ======= ======= ====== =======
</TABLE>
See accompanying notes to financial statements.
F-114
<PAGE> 297
WLIT INC.
STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------- -----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows provided by operating
activities:
Net earnings.......................... $ 2,352 $ 3,253 $ 3,849 $ 1,448 $ 2,612
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Depreciation....................... 114 114 116 55 68
Amortization of intangibles........ 541 539 543 272 272
Deferred income taxes.............. (13) 5 (8) -- --
Changes in certain assets and
liabilities:
Accounts receivable, net......... (73) (460) (517) (476) (209)
Prepaid expenses and other
current assets................ (101) (181) 98 (577) 295
Accounts payable and accrued
expenses...................... (384) 173 (247) 1,461 (1,542)
------- ------- ------- ------- -------
Net cash provided by operating
activities.................. 2,436 3,443 3,834 2,183 1,496
------- ------- ------- ------- -------
Cash flows used by investing
activities -- capital expenditures.... (180) (110) (112) (45) (156)
------- ------- ------- ------- -------
Cash flows used by financing
activities -- distributions to
Parent................................ (2,256) (3,333) (3,722) (2,138) (1,340)
------- ------- ------- ------- -------
Increase (decrease) in cash............. -- -- -- -- --
Cash at beginning of period............. -- -- -- -- --
------- ------- ------- ------- -------
Cash at end of period................... $ -- $ -- $ -- $ -- $ --
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to financial statements.
F-115
<PAGE> 298
WLIT INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(1) ORGANIZATION AND BASIS OF PRESENTATION
The accompanying financial statements include the accounts of WLIT Inc.
(the "Company"). The Company owns and operates a commercial radio station in the
Chicago market, WLIT-FM, and is wholly owned by Viacom International Inc.
("Viacom" or "Parent"), a wholly owned subsidiary of Viacom, Inc.
On February 16, 1997, Viacom International Inc. entered into a stock
purchase agreement to sell all the issued and outstanding shares of capital
stock of WAXQ Inc. and Riverside Broadcasting Co., Inc. in the New York City
market, KYSR Inc. and KIBB Inc. in the Los Angeles market, Viacom Broadcasting
East Inc. and WMZQ Inc. in the Washington, DC market, WLIT Inc. in the Chicago
market and WDRQ Inc. in the Detroit market (collectively, the "Viacom Radio
Properties") to Evergreen Media Corporation ("Evergreen") for $1.075 billion in
cash ("Proposed Transaction"). The Proposed Transaction is expected to close
after the expiration or termination of the applicable waiting periods under the
HSR Act and approval by the Federal Communications Commission ("FCC").
Contemporaneous with this transaction, Evergreen entered into a joint purchase
agreement with Chancellor Broadcasting Company ("Chancellor"), under which
Chancellor agreed to acquire the Chicago, Detroit and Los Angeles Viacom Radio
Properties referred to above for $480 million from Evergreen or from Viacom
directly.
The accompanying financial statements reflect the carve-out historical
results of operations and financial position of WLIT Inc. These financial
statements are not necessarily indicative of the results that would have
occurred if the Company had been a separate stand-alone entity during the
periods presented.
The financial statements do not include Viacom's corporate assets or
liabilities not specifically identifiable to the Company. Corporate overhead
allocations have been included in the accompanying statements of earnings in
corporate general and administrative expense and station operating expenses.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Property and Equipment
Property and equipment are stated at cost. Depreciation of property and
equipment is computed using the straight-line method over the estimated useful
lives of the assets. Repair and maintenance costs are charged to expense when
incurred.
(b) Intangible Assets
Intangible assets consist primarily of broadcast licenses. The Company
amortizes such intangible assets using the straight-line method over 40 years.
The Company continually evaluates the propriety of the carrying amount of
intangible assets as well as the amortization period to determine whether
current events or circumstances warrant adjustments to the carrying value and/or
revised estimates of useful lives. This evaluation consists of the projection of
undiscounted operating income before depreciation, amortization, nonrecurring
charges and interest over the remaining amortization periods of the related
intangible assets. At this time, the Company believes that no significant
impairment of intangible assets has occurred and that no reduction of the
estimated useful lives is warranted.
(c) Barter Transactions
The Company trades commercial air time for goods and services used
principally for promotional, sales and other business activities. An asset and
liability are recorded at the fair market value of the goods or services to be
received. Barter revenue is recorded and the liability relieved when commercials
are broadcast and barter expense is recorded and the asset relieved when goods
or services are received or used.
F-116
<PAGE> 299
WLIT INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(d) Revenue Recognition
Revenue is derived primarily from the sale of commercial announcements to
local and national advertisers. Revenue is recognized as commercials are
broadcast.
(e) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred income taxes are recognized for the tax consequences in future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts at each year end based on enacted tax laws and statutory tax
rates applicable to the periods in which the differences are expected to affect
taxable earnings. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount more likely than not to be realized. Income
tax expense is the total of tax payable for the period and the change during the
period in deferred tax assets and liabilities.
(f) Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeds the fair value of the assets. Assets to be disposed
of are reported at the lower of the carrying amount or fair value less costs to
sell. The adoption of this Statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
(g) Fair Value
The carrying amount of accounts receivable and accounts payable
approximates fair value because of the short maturity of these instruments.
(h) Disclosure of Certain Significant Risks and Uncertainties
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
In the opinion of management, credit risk with respect to trade receivables
is limited due to the large number of diversified customers in the Company's
customer base. The Company performs ongoing credit evaluations of its customers
and believes that adequate allowances for any uncollectible trade receivables
are maintained. No one customer accounted for more than 10% of net revenues in
1994, 1995, or 1996.
(i) Unaudited Interim Financial Information
In the opinion of management, the unaudited interim combined financial
statements as of and for the six months ended June 30, 1996 and 1997, reflect
all adjustments, consisting of only normal and recurring items, which are
necessary for a fair presentation of the results for the interim periods
presented. The results for the interim periods ended June 30, 1996 and 1997 are
not necessarily indicative of results to be expected for any other interim
period or for the full year.
F-117
<PAGE> 300
WLIT INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(3) PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 1995 and
1996:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL LIFE 1995 1996
----------- ------ ------
<S> <C> <C> <C>
Broadcast facilities.................................... 8-20 years $1,116 $1,141
Office equipment and other.............................. 5-8 years 791 868
Construction in progress................................ 13 13
------ ------
1,920 2,022
Accumulated depreciation................................ 1,459 1,565
------ ------
$ 461 $ 457
====== ======
</TABLE>
(4) INTANGIBLE ASSETS
Intangible assets at December 31, 1995 and 1996 consist of broadcast
licenses which are being amortized over forty years and are presented net of
accumulated amortization of $5,585 and $6,128, respectively.
(5) INCOME TAXES
The Company's results of operations are included in the U.S. federal and
certain combined and separate state income tax returns of Viacom International
Inc.
The tax provisions and deferred tax liabilities presented have been
determined as if the Company were a stand-alone business filing separate tax
returns. Current tax liabilities are recorded through the equity account with
Viacom.
Income tax expense (benefit) consists of:
<TABLE>
<CAPTION>
1994 1995 1996
------ ------ ------
<S> <C> <C> <C>
Current:
Federal.................................................. $1,588 $2,058 $2,391
State and local.......................................... 229 296 345
Deferred federal........................................... (13) 5 (8)
------ ------ ------
$1,804 $2,359 $2,728
====== ====== ======
</TABLE>
A reconciliation of the U.S. Federal Statutory tax rate to the Company's
effective tax rate on earnings before income taxes is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory U.S. tax rate..................................... 35.0% 35.0% 35.0%
Amortization of intangibles................................. 4.7 3.4 2.9
State and local taxes, net of federal tax benefit........... 3.6 3.4 3.4
Other, net.................................................. 0.2 0.2 0.2
---- ---- ----
Effective tax rate................................ 43.5% 42.0% 41.5%
==== ==== ====
</TABLE>
Deferred tax assets and liabilities are computed by applying the U.S.
federal income tax rate in effect to the gross amounts of temporary differences
and other tax attributes. These temporary differences are primarily the result
of fixed asset basis differences and bad debt expense. Deferred tax assets and
liabilities relating to state income taxes are not material.
F-118
<PAGE> 301
WLIT INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(6) DEBT AND INTEREST COST
Viacom has not allocated any portion of its debt or related interest cost
to the Company, and no portion of Viacom's debt is specifically related to the
operations of the Company. Accordingly, the Company's financial statements
include no charges for interest.
(7) RELATED PARTY TRANSACTIONS
Intercompany balances between the Company and Viacom resulting from normal
trade activity are reflected in Equity in the accompanying financial statements
(see note 8).
Viacom provides services for the Company in management, accounting and
financial reporting, human resources, information systems, legal, tax and other
corporate services. The allocation of these expenses, which is generally based
on revenue dollars, is reflected in the accompanying financial statements as
corporate general and administrative expense. Management believes that the
method of allocation of corporate overhead is reasonable.
Viacom has a noncontributory pension plan covering substantially all of its
employees, including the employees of the Company. Costs related to this plan
are allocated to the Company based on payroll dollars. The Company recognized
expense related to this plan in the amounts of $67, $46 and $126 for 1994, 1995
and 1996, respectively. The assets and the related benefit obligation of the
plan will not be transferred to the Company upon consummation of the Proposed
Transaction, therefore, such assets and obligations are not included in the
notes to the Company's financial statements.
Viacom utilizes a centralized cash management system. As a result, the
Company carries minimal cash. Disbursements are funded by the Parent upon demand
and cash receipts are transferred to the Parent daily.
The Company, from time to time, enters into transactions with companies
owned by or affiliated with Viacom. Generally, services received from such
related parties are charged to the Company at amounts which would be incurred in
transactions between unrelated entities.
(8) EQUITY
Equity represents Viacom's ownership interest in the recorded net assets of
the Company. All cash transactions and intercompany transactions flow through
the equity account. A summary of the activity is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Balance at beginning of period.......................... $19,642 $19,738 $19,658
Net earnings............................................ 2,352 3,253 3,849
Net intercompany activity............................... (2,256) (3,333) (3,722)
------- ------- -------
Balance at end of period................................ $19,738 $19,658 $19,785
======= ======= =======
</TABLE>
F-119
<PAGE> 302
WLIT INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(9) COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases, primarily for office space.
These leases generally contain renewal options for periods ranging from 1 to 10
years and require the Company to pay all executory costs such as maintenance and
insurance. Rental expense for operating leases (excluding those with lease terms
of one month or less that were not renewed) was approximately $319, $337 and
$327 during 1994, 1995 and 1996, respectively.
Future minimum lease payments under noncancelable operating leases (with
initial or remaining lease terms in excess of one year) as of December 31, 1996
are as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31:
- ------------
<S> <C> <C>
1997.................................................................. $ 266
1998.................................................................. 291
1999.................................................................. 298
2000.................................................................. 287
2001.................................................................. 296
Thereafter............................................................ 103
------
$1,541
======
</TABLE>
F-120
<PAGE> 303
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Partners of
Colfax Communications, Inc. Radio Group:
We have audited the accompanying combined balance sheets of the Colfax
Communications, Inc. Radio Group (the "Company") as of December 31, 1996, 1995,
and 1994, and the related combined statements of income (loss), changes in
partners' equity and cash flows for each of the three years in the period ended
December 31, 1996. These combined financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
combined financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform an audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In January 1997, substantially all of the assets and liabilities of the
Company were sold.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of the Colfax
Communications, Inc. Radio Group as of December 31, 1996, 1995, and 1994, and
the results of its operations and its cash flows for each of the three years in
the period ended December 31, 1996, in conformity with generally accepted
accounting principles.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C.
March 31, 1997
F-121
<PAGE> 304
COLFAX COMMUNICATIONS, INC. RADIO GROUP
COMBINED BALANCE SHEETS
AS OF DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
1996 1995 1994
------------ ----------- -----------
<S> <C> <C> <C>
Current assets:
Cash............................................... $ 1,718,589 $ 682,672 $ 216,414
Accounts receivable, net of allowance for doubtful
accounts of $710,813, $441,889, and $238,801,
respectively.................................... 15,514,187 7,626,579 8,978,881
Prepaid expenses and other current assets.......... 520,358 286,774 343,441
------------ ----------- -----------
Total current assets....................... 17,753,134 8,596,025 9,538,736
Property and equipment at cost, net of
depreciation....................................... 14,508,097 8,675,724 9,608,603
Intangibles and other noncurrent assets at cost, net
of amortization.................................... 147,579,599 32,383,587 37,653,803
------------ ----------- -----------
Total assets............................... $179,840,830 $49,655,336 $56,801,142
============ =========== ===========
Liabilities:
Accounts payable and accrued expenses.............. $ 5,116,890 $ 3,224,139 $ 3,883,242
Current maturities of long-term debt............... -- -- 900,000
------------ ----------- -----------
Total current liabilities.................. 5,116,890 3,224,139 4,783,242
Long-term debt..................................... 55,650,000 39,225,000 7,100,000
------------ ----------- -----------
Total liabilities.......................... 60,766,890 42,449,139 11,883,242
------------ ----------- -----------
Commitments (Note 8):
Partners' equity:
Radio Acquisition Associates....................... (1,141,558) (2,783,226) (3,121,671)
Equity Group Holdings.............................. 119,013,080 9,888,902 47,558,478
Colfax Communications, Inc......................... 1,202,418 100,521 481,093
Class B Limited Partners........................... -- -- --
------------ ----------- -----------
Total partners' equity..................... 119,073,940 7,206,197 44,917,900
------------ ----------- -----------
Total liabilities and partners' equity..... $179,840,830 $49,655,336 $56,801,142
============ =========== ===========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
F-122
<PAGE> 305
COLFAX COMMUNICATIONS, INC. RADIO GROUP
COMBINED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
1996 1995 1994
----------- ----------- -----------
<S> <C> <C> <C>
Advertising revenues:
Local sponsors...................................... $37,496,454 $23,425,588 $24,147,363
National sponsors................................... 12,885,713 9,151,724 8,221,228
Other............................................... 2,518,200 1,910,483 2,090,737
----------- ----------- -----------
Gross advertising revenues.................. 52,900,367 34,487,795 34,459,328
Less -- Commissions................................. (6,785,322) (4,345,062) (4,283,386)
----------- ----------- -----------
Net advertising revenues.................... 46,115,045 30,142,733 30,175,942
----------- ----------- -----------
Operating expenses:
Programming......................................... 7,675,793 5,461,691 9,604,067
Sales and advertising............................... 14,507,662 11,360,597 10,885,717
General and administrative.......................... 5,793,377 4,332,286 3,651,832
Engineering......................................... 1,260,447 1,014,375 1,084,282
Depreciation and amortization....................... 4,617,958 6,505,492 7,599,901
----------- ----------- -----------
Total operating expenses.................... 33,855,237 28,674,441 32,825,799
----------- ----------- -----------
Income (loss) from operations............... 12,259,808 1,468,292 (2,649,857)
Interest expense...................................... 4,368,669 655,795 531,387
Loss on sale of fixed assets.......................... -- 770,689 --
Other expense (income)................................ (184,289) -- 75,364
----------- ----------- -----------
Net income (loss)........................... $ 8,075,428 $ 41,808 $(3,256,608)
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-123
<PAGE> 306
COLFAX COMMUNICATIONS, INC. RADIO GROUP
COMBINED STATEMENTS OF CHANGES IN PARTNERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
RADIO EQUITY CLASS B
ACQUISITION COLFAX GROUP LIMITED
ASSOCIATES COMM., INC. HOLDINGS PARTNERS TOTAL
----------- ----------- ------------ -------- ------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1993.......... $(2,464,398) $ 528,938 $ 52,305,936 $ -- $ 50,370,476
Capital contributions from
partners....................... 368,281 60,023 5,949,744 -- 6,378,048
Capital distributions to
partners....................... (1,678,638) (68,618) (6,826,760) -- (8,574,016)
Net income (loss)................. 653,084 (39,250) (3,870,442) -- (3,256,608)
----------- ---------- ------------ ----- ------------
Balance, December 31, 1994.......... (3,121,671) 481,093 47,558,478 -- 44,917,900
Capital contributions from
partners....................... -- 5,735 567,746 -- 573,481
Capital distributions to
partners....................... (1,031,464) (372,709) (36,922,819) -- (38,326,992)
Net income (loss)................. 1,369,909 (13,598) (1,314,503) -- 41,808
----------- ---------- ------------ ----- ------------
Balance, December 31, 1995.......... (2,783,226) 100,521 9,888,902 -- 7,206,197
Capital contributions from
partners....................... 5,104 1,130,725 111,941,654 -- 113,077,483
Capital distributions to
partners....................... (981,106) (82,845) (8,221,217) -- (9,285,168)
Net income (loss)................. 2,617,670 54,017 5,403,741 -- 8,075,428
----------- ---------- ------------ ----- ------------
Balance, December 31, 1996.......... $(1,141,558) $1,202,418 $119,013,080 $ -- $119,073,940
=========== ========== ============ ===== ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-124
<PAGE> 307
COLFAX COMMUNICATIONS, INC. RADIO GROUP
COMBINED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
1996 1995 1994
------------- ------------ -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)................................ $ 8,075,428 $ 41,808 $(3,256,608)
Adjustments to reconcile net loss to net cash
used in operating activities --
Depreciation and amortization................. 4,617,958 6,505,492 7,599,901
Loss on asset disposal........................ -- 770,689 57,398
Restructuring charge.......................... -- 737,729 --
Change in assets and liabilities:
(Increase) decrease in accounts
receivable............................... (7,888,416) 1,352,302 (1,664,323)
(Increase) decrease in prepaid expenses and
other current assets..................... (233,584) 56,667 170,619
Increase (decrease) in accounts payable and
accrued expenses......................... 1,892,751 (1,396,832) 708,448
------------- ------------ -----------
Net cash provided by operating
activities............................. 6,464,137 8,067,855 3,615,435
------------- ------------ -----------
Cash flows from investing activities:
Cash paid for acquisition of intangibles and
other noncurrent assets....................... (126,017,951) (363,174) (12,944)
Payments for additions to property and
equipment..................................... (5,907,584) (823,737) (968,929)
Disposal of intangible assets.................... 6,280,000 -- --
Disposal of fixed assets......................... -- 113,825 --
------------- ------------ -----------
Net cash used in investing activities.... (125,645,535) (1,073,086) (981,873)
------------- ------------ -----------
Cash flows from financing activities:
Repayment of note payable........................ (5,800,000) (8,000,000) (800,000)
Loan proceeds.................................... 22,225,000 39,225,000 --
Capital contributions from partners.............. 113,077,483 573,481 6,378,048
Capital distributions to partners................ (9,285,168) (38,326,992) (8,190,101)
------------- ------------ -----------
Net cash provided by (used in) financing
activities............................. 120,217,315 (6,528,511) (2,612,053)
------------- ------------ -----------
Net increase (decrease) in cash.................... 1,035,917 466,258 21,509
Cash, beginning of period.......................... 682,672 216,414 194,905
------------- ------------ -----------
Cash, end of period................................ $ 1,718,589 $ 682,672 $ 216,414
============= ============ ===========
Supplemental disclosure of cash flow information:
Cash paid during the year for interest........... $ 4,391,300 $ 615,900 $ 514,213
============= ============ ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-125
<PAGE> 308
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1996, 1995, AND 1994
1. BASIS OF PRESENTATION:
The accompanying combined financial statements include the radio station
holdings of Colfax Communications, Inc. ("Colfax"), a Maryland Corporation.
Three of the stations serve the Washington, D.C., market: WGMS-FM (classical
format), WBIG-FM (oldies format), and WTEM(AM) (all-sports format). Two
stations, WBOB-FM (country format) and KQQL(FM) (oldies format), serve the
Minneapolis-St. Paul market. Five of the stations serve the Phoenix market:
KOOL-FM (oldies format), KOY(AM) (nostalgia format), KZON-FM (alternative
format), KISO(AM) (urban adult contemporary format), and KYOT-FM (new adult
contemporary format). Two stations serve the Milwaukee market: WMIL-FM (country
format) and WOKY(AM) (adult standard format). Three stations serve the Boise
market: KIDO(AM) (news/talk format), KLTB(FM) (oldies format), and KARO(FM)
(class rock format). All stations are owned by entities under the common control
of Colfax and its affiliates.
2. DESCRIPTION OF COLFAX COMMUNICATIONS, INC., RADIO GROUP:
Classical Acquisition Limited Partnership
Classical Acquisition Limited Partnership ("CALP") is a Maryland limited
partnership formed to acquire and operate radio stations WGMS(AM) (currently
WTEM(AM)) and WGMS-FM. Radio Acquisition Associates Limited Partnership, a
Maryland limited partnership, had a 98.04 percent general partner interest and
Equity Group Holdings, a District of Columbia general partnership, had a 1.96
percent limited partner interest in CALP prior to the admission of the Class B
Limited Partners as discussed below. Radio Acquisition Associates Limited
Partnership has Colfax as a 1 percent general partner and Equity Group Holdings
as a 99 percent limited partner.
Certain Class B Limited Partners were admitted to the partnership on
January 1, 1993 and on January 1, 1995. The Class B Limited Partners have a
13.25 percent interest in CALP and Equity Group Holdings' limited partnership
interest in CALP was reduced to 1.813 percent effective January 1, 1993. Radio
Acquisition Associates' Limited Partnership general partnership interest was
reduced to 90.687 percent and 84.937 percent effective January 1, 1993 and
January 1, 1995, respectively.
Radio 570 Limited Partnership
Radio 570 Limited Partnership ("Radio 570") is a Maryland limited
partnership formed on December 10, 1991, to operate radio station WTEM-AM
(formerly WGMS-AM). Radio 570 was formed by Colfax as the 1 percent general
partner and Equity Group Holdings as the 99 percent limited partner. WTEM began
broadcasting on May 24, 1992.
Effective January 1, 1993, certain Class B Limited Partners were admitted
to the partnership. On September 15, 1995, a Class B Limited Partner was
redeemed of his partnership interest. As of December 31, 1996 and 1995, the
Class B Limited Partners had a 9.25 percent interest and Equity Group Holdings
had an 89.75 percent Class A Limited Partnership interest.
Radio 100 Limited Partnership
Radio 100 Limited Partnership ("Radio 100") was formed on August 11, 1992,
to acquire and operate radio stations. Radio 100 was formed by Colfax as the 1
percent general partner and Equity Group Holdings as the 99 percent limited
partner.
In 1993, Radio 100 completed its acquisition of two radio stations in
Minnesota for $25,500,000. WBOB-FM (formerly WCTS-FM) and KQQL(FM) began on-air
operations under Radio 100 ownership on May 7, 1993, and February 18, 1993,
respectively.
F-126
<PAGE> 309
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Effective January 1, 1993, certain Class B Limited Partners were admitted
to the partnership. The Class B Limited Partners have a 10.25 percent interest
and the Equity Group Holdings Class A Limited Partnership interest was reduced
to 88.75 percent.
Radio 100 of Maryland Limited Partnership
Radio 100 of Maryland Limited Partnership ("Radio 100 of Maryland") was
formed on December 2, 1992 to acquire and operate radio stations. Radio 100 of
Maryland was formed by Colfax as the 1 percent general partner and Equity Group
Holdings as the 99 percent limited partner.
On June 3, 1993, Radio 100 of Maryland acquired WBIG-FM (formerly WJZE-FM)
in Washington, D.C. for $19,500,000.
Effective January 1, 1993, certain Class B Limited Partners were admitted
to the partnership. On September 15, 1995, a Class B Limited Partner was
redeemed of his partnership interest. On October 1, 1995, a Class B Limited
Partner was admitted to the partnership. As of December 31, 1996 and 1995, the
Class B Limited Partners had an 11.25 percent interest and Equity Group Holdings
had an 87.75 percent Class A Limited Partnership interest.
Radio 94 of Phoenix Limited Partnership
Radio 94 of Phoenix Limited Partnership ("Radio 94") was formed on January
3, 1996, to acquire and operate radio stations. Radio 94 was formed by Colfax as
the 1 percent general partner and Equity Group Holdings as the 99 percent
limited partner. On April 1, 1996, Radio 94 acquired KOOL(AM) and KOOL-FM in
Phoenix, Arizona for $35,000,000. Effective April 5, 1996, certain Class B
Limited Partners were admitted to the partnership. The Class B Limited Partners
have an 8.25 percent interest and the Equity Group Holdings Class A Limited
Partnership interest was reduced to 90.75 percent. On October 4, 1996, Radio 94
sold KOOL(AM) to Salem Media of Arizona, Inc.
Radio 95 of Phoenix Limited Partnership
Radio 95 of Phoenix Limited Partnership ("Radio 95") was formed on May 3,
1996, to acquire and operate radio stations. Radio 95 was formed by Colfax as
the 1 percent general partner and Equity Group Holdings as the 99 percent
limited partner. On September 12, 1996, Radio 95 acquired KYOT-FM, KZON-FM,
KOY(AM), and KISO(AM), each in Phoenix, Arizona; KIDO(AM) and KLTB(FM), each in
Boise, Idaho; KARO(FM) in Caldwell, Idaho; WMIL-FM in Waukesha, Wisconsin; and
WOKY(AM) in Milwaukee, Wisconsin, for $95,000,000.
F-127
<PAGE> 310
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Sale of Stations
On August 24, 1996, Chancellor Radio Broadcasting Company ("Chancellor"), a
Delaware Corporation, agreed to purchase substantially all of the assets of
CALP, Radio 570, Radio 100, Radio 100 of Maryland, Radio 94 (with the exception
of KOOL(AM)), and Radio 95 (with the exception of KIDO(AM), KLTB(FM), and
KARO(FM)) for total consideration of $365,000,000 plus the net working capital
of the stations. The transaction closed on January 23, 1997. The agreement
stipulates that the purchase price for the assets be allocated among the limited
partnerships as follows:
<TABLE>
<S> <C>
CALP........................................................ $ 50,000,000
Radio 570................................................... 21,000,000
Radio 100................................................... 85,000,000
Radio 100 of Maryland....................................... 90,000,000
Radio 94.................................................... 30,000,000
Radio 95.................................................... 89,000,000
------------
$365,000,000
============
</TABLE>
On October 28, 1996, Jacor Broadcasting of Idaho, Inc., an Ohio
corporation, entered into an agreement to purchase substantially all of the
assets of radio stations KIDO(AM), KLTB(FM), and KARO(FM) for $11,000,000. The
transaction closed on January 31, 1997.
Partnership Allocations
The partnerships distribute cash from operations and allocate net profits
or losses to the partners, in general, in accordance with their stated interests
except that no partner shall receive any distribution from a partnership until
such time as the net invested capital of the general partner and Class A Limited
Partner have been distributed, along with a cumulative priority return on the
average net invested capital at an annual rate equal to the prime rate plus one
quarter of one percent compounded monthly.
In accordance with the Company's debt agreement (described below)
distributions to partners may be permitted on a quarterly basis if certain
requirements are met.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Basis of Accounting
The accompanying financial statements are prepared on the accrual basis of
accounting in accordance with generally accepted accounting principles.
Barter Transactions
The partnerships enter into barter transactions in which they provide
on-air advertising in exchange for goods and services. Revenues and expenses
from barter transactions are presented in the accompanying statement of revenues
and expenses based on the estimated fair market value of the goods or services
received. Barter revenue approximated $1,925,000, $1,590,000, and $1,870,000 for
the years ended December 31, 1996, 1995, and 1994, respectively; while barter
expense approximated $1,763,000, $1,486,000, and $1,520,000 for the years ended
December 31, 1996, 1995, and 1994, respectively.
Income Taxes
Provision for Federal and state income taxes has not been made in the
accompanying financial statements since the partnerships do not pay Federal and
state income taxes but rather allocate profits and losses to the partners for
inclusion in their respective income tax returns.
F-128
<PAGE> 311
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Buildings and Leasehold Improvements
Buildings and leasehold improvements are recorded at cost or appraised
value at acquisition. Depreciation is recorded using the straight-line method
over 31.5 or 40 years as prescribed by the Internal Revenue Code.
Furniture, Fixtures and Equipment
Furniture, fixtures and equipment are recorded at cost or appraised value
at acquisition. Depreciation is recorded using the straight-line method over the
estimated useful life of the assets, which is typically 5 to 7 years.
Intangible Assets
Intangible assets are recorded at cost or appraised value at acquisition.
Amortization is recorded over their useful lives. The estimated useful lives of
intangible assets as of December 31, 1996, are as follows:
<TABLE>
<CAPTION>
USEFUL LIFE
-----------
<S> <C>
FCC Licenses................................................ 7-25 years
Covenants Not to Compete.................................... 3 years
Employment Agreements....................................... 2 years
Organizational Costs........................................ 5 years
Start-up Costs.............................................. 5 years
</TABLE>
Land
Certain partners have contributed to Radio 570 a parcel of land in
Germantown, Maryland which is being used as the site for a new array of
broadcasting towers. The land has been recorded at its original purchase price
plus costs related to preparing the land for its intended use.
Radio 100 of Maryland acquired a parcel of land and property in Washington,
D.C., in connection with the acquisition of WJZE-FM. This parcel of land was
recorded at its appraised value at acquisition. This land was sold in February
1995.
Radio 100 acquired a parcel of land in Nowthen, Minnesota, through the
purchase of KQQL-FM. This parcel of land was recorded at its appraised value at
acquisition.
Radio 95 acquired various parcels of land located in Phoenix, Milwaukee,
and Boise in connection with its purchase of nine stations during 1996. These
parcels of land were recorded at their estimated market value at acquisition.
Estimates
The preparation of financial statements requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Fair Value of Financial Instruments
In 1995 the Company adopted Statement of Financial Accounting Standard
("SFAS") No. 107, "Disclosure about Fair Value of Financial Instruments," which
requires disclosures of fair value information about financial instruments,
whether or not recognized in the balance sheet.
F-129
<PAGE> 312
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The carrying amount reported in the balance sheets for cash, accounts
receivable, accounts payable and accrued liabilities, approximate their fair
value due to the immediate or short-term maturity of such instruments. The
carrying amount reported for long-term debt approximates fair value due to the
debt being priced at floating rates (see Note 7 for additional information).
4. PROPERTY AND EQUIPMENT:
The components of property and equipment at December 31, 1996 and 1995, are
summarized below:
<TABLE>
<CAPTION>
1996 1995 1994
----------- ----------- -----------
<S> <C> <C> <C>
Land.................................... $ 3,719,572 $ 1,901,663 $ 2,233,341
Buildings............................... 1,372,161 26,453 604,927
Construction in progress................ 27,660 27,232 201,404
Furniture, fixtures and equipment....... 11,323,175 8,520,853 7,690,841
Leasehold improvements.................. 835,407 816,031 522,806
----------- ----------- -----------
17,277,975 11,292,232 11,253,319
Less -- Accumulated depreciation........ (2,769,878) (2,616,508) (1,644,716)
----------- ----------- -----------
$14,508,097 $ 8,675,724 $ 9,608,603
=========== =========== ===========
</TABLE>
5. FCC LICENSES AND OTHER NONCURRENT ASSETS:
The components of FCC licenses and other noncurrent assets at December 31,
1996 and 1995, are summarized below:
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
--------------------------------------------
1996 1995 1994
------------ ------------ ------------
<S> <C> <C> <C>
FCC licenses............................ $163,988,330 $ 39,505,773 $ 39,505,773
Covenants not to compete................ 1,931,834 8,493,147 8,493,147
Start-up and organization costs......... 2,489,973 2,132,587 2,153,036
Other................................... 1,376,763 958,245 1,891,395
------------ ------------ ------------
169,786,900 51,089,752 52,043,351
Less -- Accumulated amortization........ (22,207,301) (18,706,165) (14,389,548)
------------ ------------ ------------
$147,579,599 $ 32,383,587 $ 37,653,803
============ ============ ============
</TABLE>
6. RELATED-PARTY TRANSACTIONS:
Each partnership is involved in certain transactions with other
partnerships in the radio group related to sharing of services and purchasing.
These transactions are settled on a current basis through adjustments to
partners' equity accounts.
On January 18, 1995, CALP and Radio 100 of Maryland each entered into a 10
year agreement to lease tower space from Colfax Towers, Inc. The annual rental
payment for CALP equaled $31,200 and $30,000 for the years ended December 31,
1996 and 1995, respectively. The annual rental payment for Radio 100 of Maryland
equaled $37,200 and $36,000 for the years ended December 31, 1996 and 1995,
respectively. Colfax Towers, Inc., is owned by the shareholders of Colfax
Communications, Inc.
Employees of Colfax perform activities on behalf of and oversee the
operations of the radio stations included in the radio group. Colfax does not
charge any fees to the radio stations for the performance of such services.
Corporate expenses of $1,240,253, $1,354,296, and $1,144,082 related to those
services are not included in the financial statements of the radio group for the
years ending December 31, 1996, 1995, and
F-130
<PAGE> 313
COLFAX COMMUNICATIONS, INC. RADIO GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
1994, respectively. These corporate expenses were funded directly by the owners
of Colfax Communications, Inc.
7. LONG-TERM DEBT:
On December 27, 1995, CALP, Radio 570, Radio 100, and Radio 100 of Maryland
entered into a $40 million revolving loan agreement. On April 2, 1996, under an
amendment to the loan agreement, CALP, Radio 570, Radio 100, Radio 100 of
Maryland, and Radio 94 (collectively, the "Borrowers") increased the amount
available under the revolving loan agreement to $60 million. At December 31,
1996, $55,650,000 was outstanding under this agreement. The proceeds were
allocated to each borrower on the basis of each station's capital account as
follows:
<TABLE>
<S> <C>
CALP........................................................ $ 5,702,360
Radio 570................................................... 4,156,587
Radio 100................................................... 16,423,860
Radio 100 of Maryland....................................... 9,214,544
Radio 94.................................................... 20,152,649
-----------
$55,650,000
===========
</TABLE>
The initial proceeds were used to repay the indebtedness of CALP to make
certain permitted distributions to partners of the Borrowers, and for working
capital purposes in the operations of the Borrowers. Borrowings under this
agreement bear interest at floating rates equal to prime and/or LIBOR (as
defined in the loan agreement) plus an applicable margin determined by a
leverage ratio. The expiration date of the loan agreement is December 31, 2002.
Under the loan agreement, the Borrowers are required to maintain a specific
leverage ratio and certain ratios pertaining to cash flow coverage.
In connection with the sale of the stations (discussed in Note 2), the debt
was repaid in full in January 1997.
8. COMMITMENTS:
The Radio Group has entered into various contracts for exclusive radio
broadcasting rights and other programming. In addition, the partnerships lease
office space and have entered into various service contracts, including certain
personal service contracts. These broadcasting rights, leases and service
contracts expire over periods ranging from 1997 to 2012. The minimum future
commitments under these agreements, leases and service contracts are as follows:
<TABLE>
<S> <C>
1997........................................................ $ 3,766,028
1998........................................................ 2,826,433
1999........................................................ 1,178,594
2000........................................................ 1,140,345
2001........................................................ 646,234
Thereafter.................................................. 2,077,616
-----------
$11,635,250
===========
</TABLE>
9. RESTRUCTURING CHARGES:
During 1995, the Radio Group recorded restructuring costs of $737,729 at
certain radio stations. These costs included severance and salary payments to
terminated employees of $357,563, costs related to hiring a new general manager
at one of the radio stations of $135,519 and costs related to a loss on space
vacated by one of the radio stations of $244,647.
F-131
<PAGE> 314
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Whiteco Industries, Inc.
Merrillville, Indiana
We have audited the accompanying balance sheets of the Outdoor Advertising
Division of Whiteco Industries, Inc. as of December 31, 1996 and 1997, and the
related statements of income and cash flows for each of the three years in the
period ended December 31, 1997. These financial statements are the
responsibility of the Division's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Outdoor Advertising
Division of Whiteco Industries, Inc. as of December 31, 1996 and 1997, and the
results of its operations and cash flows for each of the three years in the
period ended December 31, 1997, in conformity with generally accepted accounting
principles.
BDO Seidman, LLP
Chicago, Illinois
September 17, 1998
F-132
<PAGE> 315
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------- JUNE 30,
1996 1997 1998
------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C>
Current assets
Cash............................................. $ 155,781 $ 249,733 $ 5,878,980
Accounts receivable (net of $631,000, $1,111,000
and $1,621,000 allowance for uncollectible
accounts for December 31, 1996, 1997 and June
30, 1998, respectively)....................... 9,112,798 10,718,470 12,456,109
Prepaid expenses and other
receivables................................... 2,520,913 2,684,801 3,685,460
Prepaid sign costs............................... 4,880,789 5,064,178 5,670,677
------------ ------------ ------------
Total current assets..................... 16,670,281 18,717,182 27,691,226
------------ ------------ ------------
Property and equipment
Land, buildings and improvements................. 5,389,827 6,279,957 6,842,555
Advertising signs................................ 134,120,274 150,697,192 156,016,108
Equipment........................................ 4,226,984 4,925,336 5,620,141
------------ ------------ ------------
Total cost............................... 143,737,085 161,902,485 168,478,804
Accumulated depreciation......................... 84,300,457 91,601,392 96,721,723
------------ ------------ ------------
Net property and equipment......................... 59,436,628 70,301,093 71,757,081
------------ ------------ ------------
Other sign costs................................... 707,273 1,424,848 1,458,212
------------ ------------ ------------
$ 76,814,182 $ 90,443,123 $100,906,519
============ ============ ============
LIABILITIES AND DIVISIONAL EQUITY
Current liabilities
Accounts payable................................. $ 505,561 $ 900,145 $ 703,368
Customers' advance payments and deposits......... 127,925 70,174 32,778
Accrued expenses................................. 1,577,194 2,210,355 5,235,585
------------ ------------ ------------
Total current liabilities................ 2,210,680 3,180,674 5,971,731
------------ ------------ ------------
Commitments
Divisional equity.................................. 74,603,502 87,262,449 94,934,788
------------ ------------ ------------
$ 76,814,182 $ 90,443,123 $100,906,519
============ ============ ============
</TABLE>
See accompanying notes to financial statements.
F-133
<PAGE> 316
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
STATEMENTS OF INCOME
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------------------ -------------------------
1995 1996 1997 1997 1998
------------ ------------ ------------ ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues.................................. $108,447,476 $117,268,324 $126,800,754 $60,714,018 $67,532,976
Less: Agency discounts.................... 6,616,011 8,400,821 8,702,563 4,041,347 4,609,564
------------ ------------ ------------ ----------- -----------
Net revenues............................ 101,831,465 108,867,503 118,098,191 56,672,671 62,923,412
Cost of revenues.......................... 40,659,116 42,021,229 45,615,461 22,681,820 23,274,839
Selling and administrative
expenses................................ 14,878,784 16,288,955 18,369,034 8,506,636 9,780,914
Corporate overhead expenses............... 5,176,832 5,644,490 6,073,671 3,343,374 3,754,793
Depreciation and amortization............. 8,675,204 10,501,844 11,525,410 5,421,793 5,708,816
Profit participation fee.................. 2,101,620 2,248,329 2,321,884 1,106,025 1,160,811
------------ ------------ ------------ ----------- -----------
Income from operations before other income
and interest expense.................... 30,339,909 32,162,656 34,192,731 15,613,023 19,243,239
Other income, less other
expenses................................ (1,060,355) (1,131,033) (1,833,411) (1,195,497) (504,275)
Interest expense.......................... 38,556 17,927 3,794 457 419
------------ ------------ ------------ ----------- -----------
Net income................................ $ 31,361,708 $ 33,275,762 $ 36,022,348 $16,808,063 $19,747,095
============ ============ ============ =========== ===========
</TABLE>
See accompanying notes to financial statements.
F-134
<PAGE> 317
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
------------------------------------------ ---------------------------
1995 1996 1997 1997 1998
------------ ------------ ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities
Net income................................... $ 31,361,708 $ 33,275,762 $ 36,022,348 $ 16,808,063 $ 19,747,095
Adjustments to reconcile net income to net
cash provided by operating activities
Provision for depreciation and
amortization........................... 8,675,204 10,501,844 11,525,410 5,421,793 5,708,816
Gain on disposals of assets.............. (795,498) (812,482) (1,488,665) (1,102,290) (449,470)
Increase in accounts receivable.......... (694,344) (1,853,160) (1,605,672) (549,775) (1,737,639)
Decrease (increase) in prepaid expenses
and other receivables.................. (220,881) (1,202,910) (163,888) 636,950 (1,000,659)
Increase in prepaid sign costs and other
sign costs............................. (1,044,722) (815,916) (1,840,672) (291,935) (997,848)
(Decrease) increase in accounts payable
and accrued expenses................... (66,319) 869,627 1,027,745 9,041 2,828,453
Increase (decrease) in customers' advance
payments and deposits.................. 185,750 (57,825) (57,751) (24,752) (37,396)
------------ ------------ ------------ ------------ ------------
Total adjustments.................... 6,039,190 6,629,178 7,396,507 4,099,032 4,314,257
------------ ------------ ------------ ------------ ------------
Net cash provided by operating activities.... 37,400,898 39,904,940 43,418,855 20,907,095 24,061,352
------------ ------------ ------------ ------------ ------------
Cash flows from investing activities
Proceeds from sales of assets.............. 1,352,297 1,115,793 2,474,779 1,247,089 594,393
Expenditures for advertising signs......... (26,033,225) (14,713,166) (19,541,162) (13,855,890) (5,605,912)
Expenditures for property and equipment.... (1,986,847) (2,180,644) (2,895,119) (1,823,563) (1,345,830)
------------ ------------ ------------ ------------ ------------
Net cash used in investing activities........ (26,667,775) (15,778,017) (19,961,502) (14,432,364) (6,357,349)
------------ ------------ ------------ ------------ ------------
Cash flows from financing activities
Interdivisional transactions............... (11,489,912) (24,124,287) (23,363,401) (4,462,525) (12,074,756)
------------ ------------ ------------ ------------ ------------
Net cash used in financing activities........ (11,489,912) (24,124,287) (23,363,401) (4,462,525) (12,074,756)
------------ ------------ ------------ ------------ ------------
Net (decrease) increase in cash.............. (756,789) 2,636 93,952 2,012,206 5,629,247
Cash, at beginning of year................... 909,934 153,145 155,781 155,781 249,733
------------ ------------ ------------ ------------ ------------
Cash, at end of year......................... $ 153,145 $ 155,781 $ 249,733 $ 2,167,987 $ 5,878,980
============ ============ ============ ============ ============
</TABLE>
See accompanying notes to financial statements.
F-135
<PAGE> 318
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
NOTES TO FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1998 AND FOR THE SIX MONTHS ENDED JUNE 30, 1997 AND
1998 IS UNAUDITED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
Whiteco Industries, Inc. ("Whiteco") has entered into an agreement to sell
substantially all of the assets and certain liabilities of its Outdoor
Advertising Division (the "Division"). The Division owns and operates outdoor
advertising signs throughout the United States.
During the periods covered by the financial statements, the Division was
conducted as an integral part of Whiteco's overall operations and separate
financial statements were not prepared. These financial statements have been
prepared from Whiteco's historical accounting records. Corporate overhead
expenses are actual expenses incurred by the Division. The Division operated
independently from Whiteco Industries, Inc. However, the expenses incurred by
the Division for corporate overhead may not necessarily be indicative of
expenses that would have been incurred had the Division been operated as a
separate entity.
Interim Financial Statements
The financial information as of June 30, 1998 and with respect to the six
months ended June 30, 1997 and 1998 is unaudited. In the opinion of management,
the financial statements contain all adjustments consisting of normal recurring
accruals, necessary for the fair presentation of the results for such periods.
The information is not necessarily indicative of the results of operations to be
expected for the fiscal year end.
Contracts and Revenue Recognition
Outdoor advertising signs are contracted to customers under individual
advertising contracts that primarily run from one month to five years. Revenue
is recognized ratably over the life of the contract. Costs associated with the
outdoor advertising operations, including contract costs and land rental, are
expensed over the related contract term.
Prepaid Sign Costs and Other Sign Costs
Prepaid sign costs and other sign costs are primarily land rental payments
relating to future periods. Amortization on these assets was $1,020,942,
$1,075,827 and $939,708 for the years ended December 31, 1995, 1996 and 1997,
and $269,101 and $357,985 for the six months ended June 30, 1997 and 1998,
respectively.
Property and Equipment
LAND, BUILDINGS AND IMPROVEMENTS AND EQUIPMENT
Land, buildings and improvements and equipment are carried at cost,
including interest charges capitalized during construction. Depreciation on
these assets is computed over various lives under the straight-line method and
amounted to $767,872, $911,890 and $1,092,869 for the years ended December 31,
1995, 1996 and 1997 and $486,990 and $593,454 for the six months ended June 30,
1997 and 1998, respectively.
ADVERTISING SIGNS
Advertising sign structures are depreciated by the straight-line method
over lives principally from eight to twelve years. Depreciation of advertising
signs was $6,886,390, $8,514,127 and $9,492,833 for the years ended December 31,
1995, 1996 and 1997, and $4,665,702 and $4,757,377 for the six months ended June
30, 1997 and 1998, respectively.
F-136
<PAGE> 319
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
Income Taxes
The Division is part of Whiteco Industries, Inc. which is an "S"
corporation and, as such, federal and most state income taxes are the
responsibility of the stockholder and therefore not reflected on the Division's
financial statements.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
2. LEASES
The Division leases office facilities and property under various operating
leases. The Division's primary office premises are leased from a partnership in
which Whiteco Industries, Inc. is the general partner. Annual minimum rental
payments under leases that have an initial or remaining term in excess of one
year at December 31, 1997 are as follows:
<TABLE>
<CAPTION>
RELATED
YEAR PARTY OTHER TOTAL
---- -------- -------- ----------
<S> <C> <C> <C>
1998................................................ $224,000 $270,000 $ 494,000
1999................................................ 224,000 131,000 355,000
2000................................................ 224,000 130,000 354,000
2001................................................ 224,000 131,000 355,000
2002................................................ 224,000 131,000 355,000
Thereafter.......................................... 56,000 962,000 1,018,000
</TABLE>
Total lease expense was approximately $675,000, $646,000 and $665,000 for
the years ended December 31, 1995, 1996 and 1997, and $326,000 and $333,000 for
the six months ended June 30, 1997 and 1998, respectively. Related party lease
expense was $254,000, $230,000 and $117,000 for the years ended December 31,
1995, 1996 and 1997, and $114,000 and $117,000 for the six months ended June 30,
1997 and 1998, respectively.
3. RETIREMENT SAVINGS PLAN
The Division is a part of Whiteco Industries, Inc. ("Whiteco") who
maintains a qualified plan under Section 401(k) of the Internal Revenue Code.
This plan is available for all employees who have completed one year or more of
continuous service. The plan permits employees to contribute up to 15% of their
annual compensation. The plan allows for discretionary Whiteco contributions.
Currently, Whiteco matches 20% of the employees' contributions, to a maximum of
6% of earnings, and also makes a 1% quarterly matching contribution.
Contributions were $154,160, $171,270 and $177,100 for the years ended December
31, 1995, 1996 and 1997, and $90,081 and $124,800 for the six months ended June
30, 1997 and 1998, respectively.
4. MANAGEMENT AGREEMENT
In October 1984, the Division entered into an agreement with Metro
Management Associates (the "Partnership"), a partnership in which several
partners are employees of Whiteco, for the management and operation of
approximately 540 outdoor advertising signs located in Indiana, Texas, Rhode
Island, Missouri, Ohio, Florida, Illinois, Kentucky, Pennsylvania and Virginia.
All revenue and operating expenses related to the management and operation of
the Partnership's outdoor advertising signs are included in the Division's
results
F-137
<PAGE> 320
OUTDOOR ADVERTISING DIVISION OF
WHITECO INDUSTRIES, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
of operations. The Division is required to pay a profit participation fee to the
Partnership which approximates the operating profit of the managed assets and is
based upon a fixed monthly fee and a variable fee based upon revenue. On August
31, 1998, the Partnership entered into an agreement to sell substantially all of
the assets and certain specified liabilities of the Partnership to Chancellor
Media Corporation. The management agreement between the Division and the
Partnership will be terminated upon consummation of the acquisition by
Chancellor Media Corporation.
5. SUBSEQUENT EVENT
On August 31, 1998, Whiteco Industries, Inc. entered into an agreement to
sell substantially all of the assets and certain specified liabilities of the
Division to Chancellor Media Corporation.
F-138
<PAGE> 321
------------------------------------------------------
------------------------------------------------------
WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS ABOUT THE TRANSACTIONS WE DISCUSS IN THIS PROSPECTUS OTHER THAN
THOSE CONTAINED HEREIN OR IN THE DOCUMENTS WE INCORPORATE HEREIN BY REFERENCE.
IF YOU ARE GIVEN ANY INFORMATION OR REPRESENTATIONS ABOUT THESE MATTERS THAT IS
NOT DISCUSSED OR INCORPORATED IN THIS PROSPECTUS, YOU MUST NOT RELY ON THAT
INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY SECURITIES ANYWHERE OR TO ANYONE WHERE OR TO WHOM WE ARE NOT
PERMITTED TO OFFER OR SELL SECURITIES UNDER APPLICABLE LAW. THE DELIVERY OF THIS
PROSPECTUS OFFERED HEREBY DOES NOT, UNDER ANY CIRCUMSTANCES, MEAN THAT THERE HAS
NOT BEEN A CHANGE IN OUR AFFAIRS SINCE THE DATE HEREOF. IT ALSO DOES NOT MEAN
THAT THE INFORMATION IN THIS PROSPECTUS OR IN THE DOCUMENTS WE INCORPORATE
HEREIN BY REFERENCE IS CORRECT AFTER THIS DATE.
------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information........ i
Prospectus Summary......................... 1
Risk Factors............................... 13
Use of Proceeds............................ 23
Capitalization............................. 23
Selected Consolidated Historical Financial
Data..................................... 25
Management's Discussion and Analysis of
Financial Condition and Results of
Operations............................... 27
Business................................... 34
Management and Board of Directors.......... 68
Security Ownership of Certain Beneficial
Owners and Management.................... 85
Certain Relationships and Related
Transactions............................. 88
The Exchange Offer......................... 90
Description of New Notes................... 99
Book-Entry; Delivery and Form.............. 127
Description of Certain Indebtedness........ 129
Description of Capital Stock............... 140
Certain Federal Income Tax
Considerations........................... 149
Plan of Distribution....................... 149
Legal Matters.............................. 150
Experts.................................... 150
Pro Forma Financial Information............ P-1
Index to Financial Statements.............. F-1
</TABLE>
------------------------------
UNTIL , 1999, ALL DEALERS EFFECTING TRANSACTIONS IN THE NEW NOTES,
WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A
PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A
PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD
ALLOTMENTS OR SUBSCRIPTIONS.
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
OFFER TO EXCHANGE ALL
OUTSTANDING
9% SENIOR SUBORDINATED
NOTES DUE 2008
FOR
9% SENIOR SUBORDINATED
NOTES DUE 2008
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
-------------------------
PROSPECTUS
-------------------------
, 1998
------------------------------------------------------
------------------------------------------------------
<PAGE> 322
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware ("DGCL")
empowers a Delaware corporation to indemnify any person who is, or is threatened
to be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation) by reason of the fact that
such person is or was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which he actually and reasonably incurred in
connection therewith.
CMCLA's Certificate of Incorporation, as amended, provides that no director of
the Company shall be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to CMCLA or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit.
CMCLA's Bylaws provide that CMCLA shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the corporation or, while
a director or officer or employee of the corporation, is or was serving at the
request of the corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonable incurred by him in
connection with such action, suit or proceeding, to the full extent permitted by
applicable law.
II-1
<PAGE> 323
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.11(h) -- Agreement and Plan of Merger by and among Pyramid
Communications, Inc., Evergreen Media Corporation and
Evergreen Media/Pyramid Corporation dated as of July 14,
1995 (see table of contents for list of omitted exhibits
and schedules).
2.11A(i) -- Amendment to Plan and Agreement of Merger by and among
Pyramid Communications, Inc., Evergreen Media Corporation
and Evergreen Media/Pyramid Corporation dated September
7, 1995.
2.11B(i) -- Amendment to Plan and Agreement of Merger by and among
Pyramid Communications, Inc., Evergreen Media Corporation
and Evergreen Media/Pyramid Corporation dated January 11,
1996.
2.12(j) -- Purchase Agreement between Fairbanks Communications, Inc.
and Evergreen Media Corporation dated October 12, 1995
(see table of contents for list of omitted exhibits and
schedules).
2.13(n) -- Option Agreement dated as of January 9, 1996 between
Chancellor Broadcasting Company and Evergreen Media
Corporation (including Form of Advertising Brokerage
Agreement and Form of Asset Purchase Agreement).
2.14(o) -- Asset Purchase Agreement dated April 4, 1996 between
American Radio Systems Corporation and Evergreen Media
Corporation of Buffalo (see table of contents for list of
omitted exhibits and schedules).
2.15(o) -- Asset Purchase Agreement dated April 11, 1996 between
Mercury Radio Communications, L.P. and Evergreen Media
Corporation of Los Angeles, Evergreen Media/Pyramid
Holdings Corporation, WHTT (AM) License Corp. and WHTT
(FM) License Corp. (see table of contents for list of
omitted exhibits and schedules).
2.16(o) -- Asset Purchase Agreement dated April 19, 1996 between
Crescent Communications L.P. and Evergreen Media
Corporation of Los Angeles (see table of contents for
list of omitted exhibits and schedules).
2.17(p) -- Asset Purchase Agreement dated June 13, 1996 between
Evergreen Media Corporation of Los Angeles and Greater
Washington Radio, Inc. (see table of contents for list of
omitted exhibits and schedules).
2.18(p) -- Asset Exchange Agreement dated June 13, 1996 among
Evergreen Media Corporation of Los Angeles, Evergreen
Media Corporation of the Bay State, WKLB License Corp.,
Greater Media Radio, Inc. and Greater Washington Radio,
Inc. (see table of contents for list of omitted exhibits
and schedules).
2.19(p) -- Purchase Agreement dated June 27, 1996 between WEDR,
Inc., and Evergreen Media Corporation of Los Angeles.
(See table of contents for list of omitted schedules).
</TABLE>
II-2
<PAGE> 324
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.20(p) -- Time Brokerage Agreement dated July 10, 1996 by and
between Evergreen Media Corporation of Detroit, as
Licensee, and Kidstar Interactive Media Incorporated, as
Time Broker.
2.21(p) -- Asset Purchase Agreement dated July 15, 1996 by and among
Century Chicago Broadcasting L.P., Century Broadcasting
Corporation, Evergreen Media Corporation of Los Angeles
and Evergreen Media Corporation of Chicago.
2.22(p) -- Asset Purchase Agreement dated August 12, 1996 by and
among Chancellor Broadcasting Company, Shamrock
Broadcasting, Inc. and Evergreen Media Corporation of the
Great Lakes.
2.23(p) -- Asset Purchase Agreement dated as of August 12, 1996
between Secret Communications Limited Partnership and
Evergreen Media Corporation of Los Angeles (WQRS-FM).
(See table of contents for list of omitted exhibits and
schedules)
2.24(p) -- Asset Purchase Agreement dated as of August 12, 1996
between Secret Communications Limited Partnership and
Evergreen Media Corporation of Los Angeles. (See table of
contents for list of omitted schedules)
2.25(q) -- Letter of intent dated August 27, 1996 between EZ
Communications, Inc. and Evergreen Media Corporation.
2.26(q) -- Asset Purchase Agreement dated September 19, 1996 between
Beasley-FM Acquisition Corp., WDAS License Limited
Partnership and Evergreen Media Corporation of Los
Angeles.
2.27(q) -- Asset Purchase Agreement dated September 19, 1996 between
The Brown Organization and Evergreen Media Corporation of
Los Angeles.
2.28(r) -- Stock Purchase Agreement by and between Viacom
International Inc. and Evergreen Media Corporation of Los
Angeles, dated February 16, 1997 (See table of contents
for omitted schedules and exhibits).
2.29(r) -- Agreement and Plan of Merger, by and among Evergreen
Media Corporation, Chancellor Broadcasting Company and
Chancellor Radio Broadcasting Company, dated as of
February 19, 1997.
2.30(r) -- Stockholders Agreement, by and among Chancellor
Broadcasting Company, Evergreen Media Corporation, Scott
K. Ginsburg (individually and as custodian for certain
shares held by his children), HM2/Chancellor, L.P.,
Hicks, Muse, Tate & First Equity Fund II, L.P., HM2/HMW,
L.P., The Chancellor Business Trust, HM2/HMD Sacramento
GP, L.P., Thomas O. Hicks, as Trustee of the William Cree
Hicks 1992 Irrevocable Trust, Thomas O. Hicks, as Trustee
of the Catherine Forgave Hicks 1993 Irrevocable Trust,
Thomas O. Hicks, as Trustee of the John Alexander Hicks
984 Trust, Thomas O. Hicks, as Trustee of the Mack Hardin
Hicks 1984 Trust, Thomas O. Hicks, as Trustee of Robert
Bradley Hicks 1984 Trust, Thomas O. Hicks, as Trustee of
the Thomas O. Hicks, Jr. 1984 Trust, Thomas O. Hicks and
H. Rand Reynolds, as Trustees for the Muse Children's GS
Trust, and Thomas O. Hicks, dated as of February 19,
1997.
</TABLE>
II-3
<PAGE> 325
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.31(r) -- Joint Purchase Agreement, by and among Chancellor Radio
Broadcasting Company, Chancellor Broadcasting Company,
Evergreen Media Corporation of Los Angeles, and Evergreen
Media Corporation, dated as of February 19, 1997.
2.32(s) -- Asset Exchange Agreement, by and among EZ Communications,
Inc., Professional Broadcasting Incorporated, EZ
Philadelphia, Inc., Evergreen Media Corporation of Los
Angeles, Evergreen Media Corporation of Charlotte,
Evergreen Media Corporation of the East, Evergreen Media
Corporation of Carolinaland, WBAV/ WBAV-FM/WPEG License
Corp. and WRFX License Corp., dated as of December 5,
1996 (See table of contents for list of omitted
schedules).
2.33(s) -- Asset Purchase Agreement, by and among EZ Communications,
Inc., Professional Broadcasting Incorporated, EZ
Charlotte, Inc., Evergreen Media Corporation of Los
Angeles, Evergreen Media Corporation of the East and
Evergreen Media Corporation of Carolinaland, dated as of
December 5, 1996 (See table of contents for list of
omitted schedules).
2.34(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: WGCI-AM and WGCI-FM), dated as of April
4, 1997 (see table of contents for list of omitted
schedules and exhibits).
2.35(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: KKBQ-AM and KKBQ-FM), dated as of April
4, 1997 (see table of contents for list of omitted
schedules and exhibits).
2.36(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: KHKS-FM), dated as of April 4, 1997 (see
table of contents for list of omitted schedules and
exhibits).
2.41(y) -- Amended and Restated Agreement and Plan of Merger among
Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company, Evergreen Media Corporation,
Evergreen Mezzanine Holdings Corporation and Evergreen
Media Corporation of Los Angeles, dated as of February
19, 1997, amended and restated as of July 31, 1997.
2.42(gg) -- Option Agreement, by and among Evergreen Media
Corporation, Chancellor Broadcasting Company, Bonneville
International Corporation and Bonneville Holding Company,
dated as of August 6, 1997.
2.43(ss) -- Letter Agreement, dated February 20, 1998, between CMCLA
and Capstar Broadcasting Corporation.
2.44(yy) -- Amendment No. 1, dated May 19, 1998, to Letter Agreement
dated February 20, 1998, between CMCLA and Capstar
Broadcasting Corporation.
</TABLE>
II-4
<PAGE> 326
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.45(yy) -- Unit and Stock Purchase Agreement by and among CMCLA,
Martin Media, L.P., Martin & MacFarlane, Inc., Nevada
Outdoor Systems, Inc., MW Sign Corp. and certain sellers
named therein, dated as of June 19, 1998 (see table of
contents for list of omitted schedules and exhibits).
2.46(yy) -- Agreement and Plan of Merger between Chancellor Media
Corporation and Ranger Equity Holdings Corporation dated
as of July 7, 1998.
2.47(yy) -- Asset Purchase Agreement, dated August 11, 1998, between
Chancellor Media Corporation of Los Angeles and
Independent Group Limited Partnership.
2.48(yy) -- Asset Purchase Agreement, dated August 11, 1998, between
Chancellor Media Corporation of Los Angeles and Zapis
Communications Corporation.
2.49(yy) -- Stock Purchase Agreement, dated August 11, 1998, among
Chancellor Media Corporation of Los Angeles, Young Ones,
Inc., Zebra Broadcasting Corporation and the Sellers
named therein.
2.50(yy) -- Stock Purchase Agreement, dated August 11, 1998, among
Chancellor Media Corporation of Los Angeles, ML Media
Partners LP., Wincom Broadcasting Corporation and WIN
Communications, Inc.
2.51(yy) -- Stock Purchase and Merger Agreement, dated July 9, 1998,
by and among Chancellor Media Corporation, Chancellor
Mexico LLC, Grupo Radio Centro, S.A. De C.V., and the
Selling Shareholders.
2.52+ -- Asset Purchase Agreement, dated August 30, 1998, by and
among Chancellor Media Corporation of Los Angeles,
Whiteco Industries Inc. and Metro Management Associates.
3.3(ff) -- Certificate of Incorporation of Chancellor Media
Corporation of Los Angeles, formerly known as Evergreen
Media Corporation.
3.3A(pp) -- Amendment to Certificate of Incorporation of Chancellor
Media Corporation of Los Angeles, filed September 5,
1997.
3.3B(uu) -- Amendment to the Certificate of Incorporation of
Chancellor Media Corporation, filed October 28, 1997.
3.4(ff) -- Bylaws of Chancellor Media Corporation of Los Angeles.
3.5* -- Certificate of Incorporation of Chancellor Media of the
Lone Star State.
3.6* -- Bylaws of Chancellor Media Corporation of the Lone Star
State.
3.7* -- Certificate of Incorporation of KZPS/KDGE License Corp.
3.8* -- Bylaws of KZPS/KDGE License Corp.
3.9* -- Certificate of Incorporation of Chancellor Media
Corporation of California.
3.10* -- Bylaws of Chancellor Media Corporation of California.
3.11* -- Certificate of Incorporation of KIOI License Corp.
3.12* -- Bylaws of KIOI License Corp.
</TABLE>
II-5
<PAGE> 327
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.13* -- Certificate of Incorporation of Chancellor Media
Corporation of Illinois.
3.14* -- Bylaws of Chancellor Media Corporation of Illinois.
3.15* -- Certificate of Incorporation of Chancellor Media Illinois
License Corp.
3.16* -- Bylaws of Chancellor Media Illinois License Corp.
3.17* -- Certificate of Incorporation of Chancellor Media
Corporation of Dade County.
3.18* -- Bylaws of Chancellor Media Corporation of Dade County.
3.19* -- Certificate of Incorporation of WVCG License Corp.
3.20* -- Bylaws of WVCG License Corp.
3.21* -- Certificate of Incorporation of Chancellor Media
Corporation of Massachusetts.
3.22* -- Bylaws of Chancellor Media Corporation of Massachusetts.
3.23* -- Certificate of Incorporation of Chancellor Media
Pennsylvania License Corp.
3.24* -- Bylaws of Chancellor Media Pennsylvania License Corp.
3.25* -- Certificate of Incorporation of Chancellor Media
Corporation of Miami.
3.26* -- Bylaws of Chancellor Media Corporation of Miami.
3.27* -- Certificate of Incorporation of WEDR License Corp.
3.28* -- Bylaws of WEDR License Corp.
3.29* -- Agreement of Limited Partnership of Chancellor Media
Corporation of Houston Limited Partnership.
3.30* -- Certificate of Incorporation of Chancellor Media
Corporation of Houston.
3.31* -- Bylaws of Chancellor Media Corporation of Houston.
3.32* -- Certificate of Incorporation of Chancellor Media
Corporation of the Keystone State.
3.33* -- Bylaws of Chancellor Media Corporation of the Keystone
State.
3.34* -- Certificate of Incorporation of Chancellor Media
Corporation of New York.
3.35* -- Bylaws of Chancellor Media Corporation of New York.
3.36* -- Certificate of Incorporation of Chancellor Media
Corporation of Charlotte.
3.37* -- Bylaws of Chancellor Media Corporation of Charlotte.
3.38* -- Certificate of WIOQ License Corp.
3.39* -- Bylaws of WIOQ License Corp.
3.40* -- Certificate of Incorporation of Chancellor Media
Corporation of Washington, D.C.
3.41* -- Bylaws of Chancellor Media Corporation of Washington,
D.C.
3.42* -- Certificate of Incorporation of Chancellor Media
Corporation of St. Louis.
</TABLE>
II-6
<PAGE> 328
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.43* -- Bylaws of Chancellor Media Corporation of St. Louis.
3.44* -- Certificate of Incorporation of Chancellor Media
Corporation of Michigan.
3.45* -- Bylaws of Chancellor Media Corporation of Michigan.
3.46* -- Certificate of Incorporation of Chancellor Media/WAXQ
License Corp.
3.47* -- Bylaws of Chancellor Media/WAXQ License Corp.
3.48* -- Certificate of WAXQ License Corp.
3.49* -- Bylaws of WAXQ License Corp.
3.50* -- Certificate of Incorporation of Chancellor Media/KCMG
Inc.
3.51* -- Bylaws of Chancellor Media/KCMG Inc.
3.52* -- Certificate of Incorporation of Chancellor
Media/Riverside Broadcasting Co., Inc.
3.53* -- Bylaws of Chancellor Media/Riverside Broadcasting Co.,
Inc.
3.54* -- Certificate of Incorporation of WLTW License Corp.
3.55* -- Bylaws of WLTW License Corp.
3.56* -- Certificate of Incorporation of Chancellor Media
Corporation of the Capital City.
3.57* -- Bylaws of Chancellor Media Corporation of the Capital
City.
3.58* -- Certificate of Incorporation of Chancellor Media D.C.
License Corp.
3.59* -- Bylaws of Chancellor Media D.C. License Corp.
3.60* -- Certificate of Incorporation of Chancellor Media Licensee
Company.
3.61* -- Bylaws of Chancellor Media Licensee Company.
3.62* -- Certificate of Incorporation of Chancellor Media/Trefoil
Communications, Inc.
3.63* -- Amended and Restated Bylaws of Chancellor Media/Trefoil
Communications, Inc.
3.64* -- Certificate of Incorporation of Chancellor Media/Shamrock
Broadcasting, Inc.
3.65* -- Amended and Restated Bylaws of Chancellor Media/Shamrock
Broadcasting, Inc.
3.66* -- Certificate of Incorporation of Chancellor Media/Shamrock
Radio Licenses, Inc.
3.67* -- Bylaws of Chancellor Media/Shamrock Radio Licenses, Inc.
3.68* -- Certificate of Incorporation of Chancellor Media/Shamrock
Broadcasting Licenses of Denver, Inc.
3.69* -- Bylaws of Chancellor Media/Shamrock Broadcasting Licenses
of Denver, Inc.
3.70* -- Articles of Incorporation of Chancellor Media/Shamrock
Broadcasting of Texas, Inc.
</TABLE>
II-7
<PAGE> 329
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.71* -- Amended and Restated Bylaws of Chancellor Media/Shamrock
Broadcasting of Texas, Inc.
3.72* -- Limited Liability Company Agreement of Chancellor
Media/Shamrock Radio Licenses, LLC.
3.73* -- Certificate of Incorporation of Chancellor Media Outdoor
Corporation.
3.74* -- Bylaws of Chancellor Media Outdoor Corporation.
3.75* -- Certificate of Incorporation of Chancellor Media Nevada
Sign Corporation.
3.76* -- Bylaws of Chancellor Media Nevada Sign Corporation.
3.77* -- Certificate of Incorporation of Chancellor Media MW Sign
Corporation.
3.78* -- Bylaws of Chancellor Media MW Sign Corporation.
3.79* -- Certificate of Incorporation of Chancellor Media Martin
Corporation.
3.80* -- Bylaws of Chancellor Media Martin Corporation.
3.81* -- Articles of Incorporation of Western Poster, Inc.
3.82* -- Bylaws of Western Poster, Inc.
3.83* -- Certificate of Incorporation of The AMFM Radio Networks,
Inc.
3.84* -- Bylaws of The AMFM Radio Networks, Inc.
3.85* -- Certificate of Incorporation of Chancellor Media Air
Services Corporation.
3.86* -- Bylaws of Chancellor Media Air Services Corporation.
3.87* -- Certificate of Incorporation of Chancellor Media Whiteco
Outdoor Corporation.
3.88* -- Bylaws of Chancellor Media Whiteco Outdoor Corporation.
3.89* -- Certificate of Incorporation of Chancellor Merger Corp.
3.90* -- Bylaws of Chancellor Merger Corp.
3.91* -- Articles of Organization of Broadcast Architecture, Inc.
3.92* -- Bylaws of Broadcast Architecture, Inc.
3.93+ -- Agreement of Limited Partnership of Martin Media.
3.94* -- Articles of Incorporation of Dowling Company
Incorporated.
3.95* -- Bylaws of Dowling Company Incorporated.
3.96* -- Articles of Incorporation of Nevada Outdoor Systems, Inc.
3.97* -- Bylaws of Nevada Outdoor Systems, Inc.
3.98* -- Articles of Incorporation of MW Sign Corp.
3.99* -- Bylaws of MW Sign Corp.
3.100* -- Articles of Incorporation of Martin & MacFarlane, Inc.
3.101* -- Bylaws of Martin & MacFarlane, Inc.
3.102* -- Certificate of Incorporation of Katz Media Corporation.
3.103* -- Bylaws of Katz Media Corporation.
3.104* -- Certificate of Incorporation of Katz Communications, Inc.
</TABLE>
II-8
<PAGE> 330
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.105* -- Bylaws of Katz Communications, Inc.
3.106* -- Certificate of Incorporation of Katz Millennium
Marketing, Inc.
3.107* -- Bylaws of Katz Millennium Marketing, Inc.
3.108* -- Certificate of Incorporation of Amcast Radio Sales, Inc.
3.109* -- Bylaws of Amcast Radio Sales, Inc.
3.110* -- Certificate of Incorporation of Christal Radio Sales,
Inc.
3.111* -- Amended and Restated Bylaws of Christal Radio Sales, Inc.
3.112* -- Certificate of Incorporation of Eastman Radio Sales, Inc.
3.113* -- Bylaws of Eastman Radio Sales, Inc.
3.114* -- Certificate of Incorporation of Seltel, Inc.
3.115* -- Bylaws of Seltel, Inc.
3.116* -- Certificate of Incorporation of Katz Cable Corporation.
3.117* -- Amended and Restated Bylaws of Katz Cable Corporation.
3.118* -- Certificate of Incorporation of The National Payroll
Company, Inc.
3.119* -- Bylaws of The National Payroll Company, Inc.
3.120* -- Limited Liability Company Agreement of Chancellor Media
Radio Licenses, LLC
3.121* -- Agreement of Limited Partnership of KLOL License Limited
Partnership.
3.122* -- Agreement of Limited Partnership of WTOP License Limited
Partnership.
3.123* -- Certificate of Formation of Radio 100, L.L.C.
4.10(t) -- Second Amended and Restated Loan Agreement dated as of
April 25, 1997 among Evergreen Media Corporation of Los
Angeles, the financial institutions whose names appear as
Lenders on the signature pages thereof (the "Lenders"),
Toronto Dominion Securities, Inc., as Arranging Agent,
The Bank of New York and Bankers Trust Company, as
Co-Syndication Agents, NationsBank of Texas, N.A. and
Union Bank of California, as Co-Documentation Agents, and
Toronto Dominion (Texas), Inc., as Administrative Agent
for the Lenders, together with certain collateral
documents attached thereto as exhibits, including
Assignment of Partnership Interests, Assignment of Trust
Interests, Borrower's Pledge Agreement, Parent Company
Guaranty, Stock Pledge Agreement, Subsidiary Guaranty and
Subsidiary Pledge Agreement (see table of contents for
list of omitted schedules and exhibits.
4.11(z) -- First Amendment to Second Amended and Restated Loan
Agreement, dated June 26, 1997, among Evergreen Media
Corporation of Los Angeles, the Lenders, the Agents and
the Administrative Agent.
4.15(aa) -- Indenture, dated as of February 14, 1996, governing the
9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
</TABLE>
II-9
<PAGE> 331
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.16(bb) -- First Supplemental Indenture, dated as of February 14,
1996, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.17(cc) -- Indenture, dated as of February 26, 1996, governing the
12 1/4% Subordinated Exchange Debentures due 2008 of
CMCLA.
4.18(dd) -- Indenture, dated as of January 23, 1997, governing the
12% Subordinated Exchange Debentures due 2009 of CMCLA.
4.19(ee) -- Indenture, dated as of June 24, 1997, governing the
8 3/4% Senior Subordinated Notes due 2007 of CMCLA.
4.21(ff) -- Specimen of the 12 1/4% Series A Senior Cumulative
Exchangeable Preferred Stock Certificate of CMCLA.
4.22(ff) -- Specimen of the 12% Exchangeable Preferred Stock
Certificate of CMCLA.
4.23(ff) -- Form of Certificate of Designation for the 12 1/4% Series
A Senior Cumulative Exchangeable Preferred Stock of
CMCLA.
4.24(ff) -- Form of Certificate of Designation for the 12%
Exchangeable Preferred Stock of CMCLA.
4.25(pp) -- Second Amendment to Second Amended and Restated Loan
Agreement, dated August 7, 1997, among Evergreen Media
Corporation of Los Angeles, the Lenders, the Agents and
the Administrative Agent.
4.26(hh) -- Second Supplemental Indenture, dated as of April 15,
1997, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.27(pp) -- Third Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.28(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated June 24, 1997, governing the
8 3/4% Senior Subordinated Notes due 2007 of CMCLA.
4.29(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated February 26, 1997, governing
the 12 1/4% Subordinated Exchange Debentures due 2008 of
CMCLA.
4.30(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated January 23, 1997, governing
the 12% Subordinated Exchange Debentures due 2009 of
CMCLA.
4.34(uu) -- Amended and Restated Indenture, dated as of October 28,
1997, governing the 10 1/2% Senior Subordinated Notes due
2007 of CMCLA.
4.35(uu) -- Second Supplement Indenture, dated as of October 28,
1997, to the Amended and Restated Indenture dated October
28, 1997 governing the 10 1/2% Senior Subordinated Notes
due 2007 of CMCLA.
4.36(uu) -- Third Amendment to Second Amended and Restated Loan
Agreement, dated October 28, 1997, among CMCLA, the
Lenders, the Agents and the Administrative Agent.
</TABLE>
II-10
<PAGE> 332
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.37(uu) -- Fourth Amendment to Second Amended and Restated Loan
Agreement, dated February 10, 1998, among CMCLA, the
Lenders, the Agents and the Administrative Agent.
4.38(vv) -- Indenture, dated as of December 22, 1997, governing the
8 1/8% Senior Subordinated Notes due 2007 of CMCLA.
4.39(ww) -- Fifth Amendment to Second Amended and Restated Loan
Agreement, dated May 1, 1998, among CMCLA, the Lenders,
the Agents and the Administrative Agent.
4.40(yy) -- Sixth Amendment to Second Amended and Restated Loan
Agreement, dated July 31, 1998, among CMCLA, the Lenders,
the Agents and the Administrative Agent.
4.41* -- Indenture, dated as of September 30, 1998, governing the
9% Senior Subordinated Notes due 2008 of CMCLA.
4.42* -- Purchase Agreement, dated as of September 25, 1998, among
CMCLA, the Guarantors named therein and Goldman, Sachs &
Co.
4.43* -- Registration Rights Agreement, dated as of September 30,
1998, among CMCLA, the Guarantors named therein and
Goldman, Sachs & Co.
5.1* -- Opinion of Weil, Gotshal & Manges LLP.
10.23(xx) -- Amended and Restated Chancellor Media Corporation Stock
Option Plan for Non-employee Directors.
10.26(n)** -- Employment Agreement dated February 9, 1996 by and
between Evergreen Media Corporation and Kenneth J.
O'Keefe.
10.28(o) -- 1995 Stock Option Plan for executive officers and key
employees of Evergreen Media Corporation.
10.30(pp)** -- First Amendment to Employment Agreement dated March 1,
1997 by and between Evergreen Media Corporation and
Kenneth J. O'Keefe.
10.31(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and Scott K. Ginsburg.
10.32(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and James de Castro.
10.33(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and Matthew E. Devine.
10.34(pp)** -- Second Amendment to Employment Agreement dated September
4, 1997 by and among Evergreen Media Corporation,
Evergreen Media Corporation of Los Angeles and Kenneth J.
O'Keefe.
10.35(ii)** -- Employment Agreement dated February 14, 19965 by and
among Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company and Steven Dinetz.
10.36(jj) -- Chancellor Broadcasting Company 1996 Stock Award Plan.
</TABLE>
II-11
<PAGE> 333
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
10.37(kk) -- Chancellor Holdings Corp. 1994 Director Stock Option
Plan.
10.38(ll) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Steven Dinetz.
10.39(mm) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Eric W. Neumann.
10.40(nn) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Marvin Dinetz.
10.41(oo) -- Stock Option Grant Letter dated February 14, 1997 from
Chancellor Broadcasting Company to Carl M. Hirsch.
10.44(vv)** -- Agreement dated April 20, 1998 by and among Chancellor
Media Corporation, Chancellor Media Corporation of Los
Angeles and Scott K. Ginsburg.
10.45(vv)** -- Employment Agreement dated April 29, 1998 by and among
Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Jeffrey A. Marcus.
10.46(yy) -- Chancellor Media Corporation 1998 Stock Option Plan.
10.47(yy) -- Voting Agreement, among Chancellor Media Corporation and
Rangers Equity Partners, L.P. dated as of July 7, 1998.
10.48* -- Employment Agreement, dated as of May 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and James E. de Castro.
10.49* -- Employment Agreement, dated as of May 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Matthew E. Devine.
10.50* -- Employment Agreement, dated as of June 1, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Eric C. Neuman.
10.51* -- Employment Agreement, dated as of August 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and James A. McLaughlin, Jr.
12.1* -- Chancellor Media Corporation of Los Angeles Computation
of Ratio of Earnings to Combined Fixed Charges.
23.1* -- Consent of Weil, Gotshal & Manges LLP (included as part
of their opinion listed as Exhibit 5.1).
23.2* -- Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.3* -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.4* -- Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.5* -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.6* -- Consent of Arthur Andersen LLP, independent accountants.
23.7* -- Consent of BDO Seidman, LLP, independent accountants.
24.1 -- Powers of Attorney (included on signature pages).
</TABLE>
II-12
<PAGE> 334
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
99.1* -- Form of Letter of Transmittal.
99.2* -- Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
* Filed herewith.
** Management Contract or Compensatory Agreement.
+ To be filed by amendment.
(a) Incorporated by reference to the identically numbered exhibit to the
Registration Statement on Form S-1, as amended (Reg. No. 33-60036), of
Evergreen Media Corporation ("Evergreen").
(f) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-4, as amended (Reg. No.
33-89838).
(h) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated July 14, 1995.
(i) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated January 17, 1996.
(j) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ending
June 30, 1995.
(k) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-1, as amended (Reg. No.
33-69752).
(n) Incorporated by reference to the identically numbered exhibit to
Evergreen's Annual Report on Form 10-K for the fiscal year ended December
31, 1995.
(o) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ending
March 31, 1996.
(p) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1996.
(q) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-3, as amended (Reg. No.
333-12453).
(r) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated February 16, 1997 and filed
March 9, 1997.
(s) Incorporated by reference to the identically numbered exhibit to
Evergreen's Annual Report on Form 10-K for the fiscal year ended December
31, 1996.
(t) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated April 1, 1997 and filed May
9, 1997.
(y) Incorporated by reference to the identically numbered exhibit of
Evergreen's Registration Statement on Form S-4, filed August 1, 1997.
(z) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated July 7, 1997 and filed July
31, 1997.
(aa) Incorporated by reference to Exhibit 4.4 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company, as filed on February 29, 1996.
(bb) Incorporated by reference to Exhibit 4.5 to the Annual Report on Form
10-K of Chancellor Broadcasting Company, Chancellor Radio Broadcasting
Company and
II-13
<PAGE> 335
Chancellor Broadcasting Licensee Company for the fiscal year ended
December 31, 1995.
(cc) Incorporated by reference to Exhibit 4.6 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company, as filed on February 29, 1996.
(dd) Incorporated by reference to Exhibit 4.7 to the Current Report on Form
8-K of Chancellor Radio Broadcasting Company, as filed on February 6,
1997.
(ee) Incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company as filed on July 17, 1997.
(ff) Incorporated by reference to the identically-numbered exhibit to the
Registration Statement on Form S-4 (Reg. No. 333-32259), dated July 29,
1997, as amended, of Evergreen Media Corporation of Los Angeles
("EMCLA").
(gg) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Evergreen and EMCLA for the quarterly
period ending June 30, 1997.
(hh) Incorporated by reference to Exhibit 4.8 to the Quarterly Report on Form
10-Q of Chancellor Broadcasting Company ("CBC") and CRBC for the
quarterly period ending March 31, 1997.
(ii) Incorporated by reference to Exhibit 10.6 to CBC's Registration Statement
on Form S-1 (Reg. No. 333-02782) filed February 9, 1996.
(jj) Incorporated by reference to Exhibit 4.22 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(kk) Incorporated by reference to Exhibit 4.23 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(ll) Incorporated by reference to Exhibit 4.24 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(mm) Incorporated by reference to Exhibit 4.25 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(nn) Incorporated by reference to Exhibit 4.26 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(oo) Incorporated by reference to Exhibit 4.27 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(pp) Incorporated by reference to the identically numbered exhibit to the
CMCLA's Registration Statement on Form S-4 (Reg. No. 333-36451), dated
September 26, 1997, as amended.
(ss) Incorporated by reference to the identically numbered exhibit to the
Current Report on Form 8-K of Chancellor Media and CMCLA, dated as of
February 23, 1998 and filed as of February 27, 1998.
(tt) Incorporated by reference to the identically numbered exhibit to the
Annual Report on Form 10-K of Chancellor Media and the CMCLA for the
fiscal year ended December 31, 1997.
II-14
<PAGE> 336
(uu) Incorporated by reference to the identically numbered exhibit to the
Annual Report on Form 10-K of Chancellor and CMCLA for the fiscal year
ended December 31, 1997.
(vv) Incorporated by reference to the identically numbered exhibit to CMCLA's
Registration Statement on Form S-4 (Reg. No. 333-50739), dated April 22,
1998, as amended.
(ww) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Chancellor Media and CMCLA for the
quarterly period ending March 31, 1998.
(xx) Incorporated by reference to Exhibit 4.41 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-53179), dated May 20,
1998.
(yy) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Chancellor Media and CMCLA for the
quarterly period ending June 30, 1998.
The Company hereby agrees to furnish supplementary a copy of any omitted
schedule or exhibit to the Commission upon request.
B. Financial Statement Schedules
All schedules have been omitted since the required information is either not
present or not present in amounts sufficient to require submission of the
schedules, or because the information required is included in the consolidated
financial statements or the notes thereto.
ITEM 22. UNDERTAKINGS.
A. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 20 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expense incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's Annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's Annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
II-15
<PAGE> 337
C. The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
D. The undersigned registrant hereby undertakes 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.
E. (1) The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145, the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(2) The registrant undertakes that every prospectus: (i) that is filed pursuant
to paragraph (1) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act of 1933, as amended, and
is used in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and will not be
used until such amendment is effective, and that, for purposes of determining
any liability under the Securities Act of 1933, each such post-effective
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.
II-16
<PAGE> 338
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on November 6, 1998.
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Senior Vice President and
Chief Financial Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities and Exchange Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ THOMAS O. HICKS Chairman of the Board November 6, 1998
- ------------------------------------------
Thomas O. Hicks
/s/ JEFFREY A. MARCUS Chief Executive Officer November 6, 1998
- ------------------------------------------ and President (Principal
Jeffrey A. Marcus Executive Officer)
/s/ JAMES E. DE CASTRO Chief Operating Officer November 6, 1998
- ------------------------------------------ and Director
James E. de Castro
/s/ MATTHEW E. DEVINE Senior Vice President and November 6, 1998
- ------------------------------------------ Chief Financial Officer
Matthew E. Devine (Principal Financial
Officer and Principal
Accounting Officer)
</TABLE>
II-17
<PAGE> 339
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ THOMAS J. HODSON Director November 6, 1998
- ------------------------------------------
Thomas J. Hodson
/s/ PERRY J. LEWIS Director November 6, 1998
- ------------------------------------------
Perry J. Lewis
Director
- ------------------------------------------
John H. Massey
/s/ MICHAEL J. LEVITT Director November 6, 1998
- ------------------------------------------
Michael J. Levitt
/s/ LAWRENCE D. STUART, JR. Director November 6, 1998
- ------------------------------------------
Lawrence D. Stuart, Jr.
/s/ STEVEN DINETZ Director November 6, 1998
- ------------------------------------------
Steven Dinetz
/s/ VERNON E. JORDAN, JR. Director November 6, 1998
- ------------------------------------------
Vernon E. Jordan, Jr.
/s/ J. OTIS WINTERS Director November 6, 1998
- ------------------------------------------
J. Otis Winters
</TABLE>
II-18
<PAGE> 340
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Co-Registrants listed on Attachment A hereto has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on November 6, 1998.
THE CO-REGISTRANTS LISTED ON
ATTACHMENT A HERETO
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President
of Each Co-Registrant Listed on
Attachment A
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer November 6, 1998
- ------------------------------------------ and President of Each
Jeffrey A. Marcus Co-Registrant (Principal
Executive Officer of
Each Co-Registrant)
/s/ MATTHEW E. DEVINE Vice President and November 6, 1998
- ------------------------------------------ Director of Each
Matthew E. Devine Co-Registrant (Principal
Financial Officer and
Principal Accounting
Officer of Each
Co-Registrant)
</TABLE>
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<PAGE> 341
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ ERIC C. NEUMAN Director of Each Co- November 6, 1998
- ------------------------------------------ Registrant
Eric C. Neuman
/s/ LAWRENCE D. STUART, JR. Director of Each Co- November 6, 1998
- ------------------------------------------ Registrant
Lawrence D. Stuart, Jr.
</TABLE>
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<PAGE> 342
ATTACHMENT A
<TABLE>
<CAPTION>
NAME
<S> <C>
Chancellor Media Corporation of the Lone Star State
KZPS/KDGE License Corp.
Chancellor Media Corporation of California
KIOI License Corp.
Chancellor Media Corporation of Illinois
Chancellor Media Illinois License Corp.
Chancellor Media Corporation of Dade County
WVCG License Corp.
Chancellor Media Corporation of Massachusetts
Chancellor Media Pennsylvania License Corp.
Chancellor Media Corporation of Miami
WEDR License Corp.
Chancellor Media Corporation of Houston
Chancellor Media Corporation of the Keystone State
Chancellor Media Corporation of New York
Chancellor Media Corporation of Charlotte
WIOQ License Corp.
Chancellor Media Corporation of Washington, D.C.
Chancellor Media Corporation of St. Louis
Chancellor Media Corporation of Michigan
Chancellor Media/WAXQ Inc.
WAXQ License Corp.
Chancellor Media/KCMG Inc.
Chancellor Media/Riverside Broadcasting Co., Inc.
WLTW License Corp.
Chancellor Media Corporation of the Capital City
Chancellor Media D.C. License Corp.
Chancellor Media Licensee Company
Chancellor Media/Trefoil Communications, Inc.
Chancellor Media/Shamrock Broadcasting, Inc.
Chancellor Media/Shamrock Radio Licenses, Inc.
Chancellor Media/Shamrock Broadcasting Licenses of Denver,
Inc.
Chancellor Media/Shamrock Broadcasting of Texas, Inc.
The AMFM Radio Networks, Inc.
Chancellor Media Air Services Corporation
Chancellor Merger Corp.
Broadcast Architecture, Inc.
</TABLE>
II-21
<PAGE> 343
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Co-Registrants listed on Attachment B hereto has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on November 6, 1998.
THE CO-REGISTRANTS LISTED ON
ATTACHMENT B HERETO.
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President of Each Co-Registrant
Listed on Attachment B
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew E.
Devine as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any or all further amendment
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer, November 6, 1998
- ------------------------------------------ President and Director
Jeffrey A. Marcus of Each Co-Registrant
(Principal Executive
Officer)
/s/ MATTHEW E. DEVINE Vice President of Each Co- November 6, 1998
- ------------------------------------------ Registrant, (Principal
Matthew E. Devine Financial Officer and
Principal Accounting
Officer)
/s/ ERIC C. NEUMAN Director of Each November 6, 1998
- ------------------------------------------ Co-Registrant
Eric C. Neuman
</TABLE>
II-22
<PAGE> 344
ATTACHMENT B
<TABLE>
<CAPTION>
NAME
<S> <C>
Chancellor Media Outdoor Corporation
Chancellor Media Nevada Sign Corporation
Chancellor Media MW Sign Corporation
Chancellor Media Martin Corporation
Chancellor Media Whiteco Outdoor Corporation
Dowling Company Incorporated
Nevada Outdoor Systems, Inc.
</TABLE>
II-23
<PAGE> 345
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Co-Registrants listed on Attachment C hereto has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on November 6, 1998.
THE CO-REGISTRANTS LISTED ON
ATTACHMENT B HERETO.
By: /s/ RICHARD E. VENDIG
--------------------------------------
Richard E. Vendig
Senior Vice President, Chief Financial
and
Administrative Officer, Treasurer of
Each
Co-Registrant Listed on Attachment C
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew E.
Devine as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any or all further amendment
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ RICHARD E. VENDIG Senior Vice President, November 6, 1998
- ------------------------------------------ Chief Financial and
Richard E. Vendig Administrative Officer,
Treasurer of Each Co-
Registrant (Principal
Executive Officer,
Principal Financial
Officer and Principal
Accounting Officer)
/s/ JEFFREY A. MARCUS Director of Each Co- November 6, 1998
- ------------------------------------------ Registrant
Jeffrey A. Marcus
</TABLE>
II-24
<PAGE> 346
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ MATTHEW E. DEVINE Director of Each Co- November 6, 1998
- ------------------------------------------ Registrant
Matthew E. Devine
/s/ ERIC C. NEUMAN Director of Each Co- November 6, 1998
- ------------------------------------------ Registrant
Eric C. Neuman
</TABLE>
II-25
<PAGE> 347
ATTACHMENT C
<TABLE>
<CAPTION>
NAME
<S> <C>
MW Sign Corp.
Martin & MacFarlane, Inc.
Katz Media Corporation
Katz Communications, Inc.
Katz Millennium Marketing, Inc.
Amcast Radio Sales, Inc.
Christal Radio Sales, Inc.
Eastman Radio Sales, Inc.
Seltel, Inc.
Katz Cable Corporation
The National Payroll Company, Inc.
</TABLE>
II-26
<PAGE> 348
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Co-Registrants has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on November 6, 1998.
CHANCELLOR MEDIA/SHAMROCK
RADIO LICENSES, LLC
CHANCELLOR MEDIA RADIO
LICENSES, LLC
RADIO 100, L.L.C.
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President of Each Co-Registrant
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer November 6, 1998
- ------------------------------------------ and President of Each
Jeffrey A. Marcus Co-Registrant (Principal
Executive Officer)
/s/ MATTHEW E. DEVINE Vice President of Each Co- November 6, 1998
- ------------------------------------------ Registrant (Principal
Matthew E. Devine Financial Officer and
Principal Accounting
Officer)
</TABLE>
II-27
<PAGE> 349
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Co-Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on November 6, 1998.
WTOP LICENSE LIMITED
PARTNERSHIP
By: CHANCELLOR MEDIA CORPORATION OF
WASHINGTON, D.C., its general partner
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer and November 6, 1998
- ------------------------------------------ President (Principal
Jeffrey A. Marcus Executive Officer)
/s/ MATTHEW E. DEVINE Vice President and Director November 6, 1998
- ------------------------------------------ (Principal Financial
Matthew E. Devine Officer and Principal
Accounting Officer)
/s/ ERIC C. NEUMAN Director November 6, 1998
- ------------------------------------------
Eric C. Neuman
/s/ LAWRENCE D. STUART, JR. Director November 6, 1998
- ------------------------------------------
Lawrence D. Stuart, Jr.
</TABLE>
II-28
<PAGE> 350
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Co-Registrants has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on November 6, 1998.
CHANCELLOR MEDIA CORPORATION
OF HOUSTON LIMITED PARTNERSHIP
KLOL LICENSE LIMITED
PARTNERSHIP
By: CHANCELLOR MEDIA CORPORATION OF
HOUSTON, their general partner
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer November 6, 1998
- ------------------------------------------ and President (Principal
Jeffrey A. Marcus Executive Officer)
/s/ MATTHEW E. DEVINE Vice President and November 6, 1998
- ------------------------------------------ Director (Principal
Matthew E. Devine Financial Officer and
Principal Accounting
Officer)
</TABLE>
II-29
<PAGE> 351
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ ERIC C. NEUMAN Director November 6, 1998
- ------------------------------------------
Eric C. Neuman
/s/ LAWRENCE D. STUART, JR. Director November 6, 1998
- ------------------------------------------
Lawrence D. Stuart, Jr.
</TABLE>
II-30
<PAGE> 352
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Co-Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on November 6, 1998.
MARTIN MEDIA, L.P.
By: MW SIGN CORP., its general partner
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer, November 6, 1998
- ------------------------------------------ President and Director
Jeffrey A. Marcus (Principal Executive
Officer)
/s/ MATTHEW E. DEVINE Vice President and November 6, 1998
- ------------------------------------------ Director (Principal
Matthew E. Devine Financial Officer and
Principal Accounting
Officer)
/s/ ERIC C. NEUMAN Director November 6, 1998
- ------------------------------------------
Eric C. Neuman
</TABLE>
II-31
<PAGE> 353
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Co-Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on November 6, 1998.
WESTERN POSTER SERVICE, INC.
By: /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Vice President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffrey A.
Marcus and Matthew E. Devine, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendment (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Chief Executive Officer, November 6, 1998
- ------------------------------------------ President and Director
Jeffrey A. Marcus (Principal Executive
Officer)
/s/ MATTHEW E. DEVINE Vice President and November 6, 1998
- ------------------------------------------ Director (Principal
Matthew E. Devine Financial Officer and
Principal Accounting
Officer)
/s/ ERIC C. NEUMAN Director November 6, 1998
- ------------------------------------------
Eric C. Neuman
Director
- ------------------------------------------
Rachel Kitchens
Director
- ------------------------------------------
William Pierce
</TABLE>
II-32
<PAGE> 354
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.11(h) -- Agreement and Plan of Merger by and among Pyramid
Communications, Inc., Evergreen Media Corporation and
Evergreen Media/Pyramid Corporation dated as of July 14,
1995 (see table of contents for list of omitted exhibits
and schedules).
2.11A(i) -- Amendment to Plan and Agreement of Merger by and among
Pyramid Communications, Inc., Evergreen Media Corporation
and Evergreen Media/Pyramid Corporation dated September
7, 1995.
2.11B(i) -- Amendment to Plan and Agreement of Merger by and among
Pyramid Communications, Inc., Evergreen Media Corporation
and Evergreen Media/Pyramid Corporation dated January 11,
1996.
2.12(j) -- Purchase Agreement between Fairbanks Communications, Inc.
and Evergreen Media Corporation dated October 12, 1995
(see table of contents for list of omitted exhibits and
schedules).
2.13(n) -- Option Agreement dated as of January 9, 1996 between
Chancellor Broadcasting Company and Evergreen Media
Corporation (including Form of Advertising Brokerage
Agreement and Form of Asset Purchase Agreement).
2.14(o) -- Asset Purchase Agreement dated April 4, 1996 between
American Radio Systems Corporation and Evergreen Media
Corporation of Buffalo (see table of contents for list of
omitted exhibits and schedules).
2.15(o) -- Asset Purchase Agreement dated April 11, 1996 between
Mercury Radio Communications, L.P. and Evergreen Media
Corporation of Los Angeles, Evergreen Media/Pyramid
Holdings Corporation, WHTT (AM) License Corp. and WHTT
(FM) License Corp. (see table of contents for list of
omitted exhibits and schedules).
2.16(o) -- Asset Purchase Agreement dated April 19, 1996 between
Crescent Communications L.P. and Evergreen Media
Corporation of Los Angeles (see table of contents for
list of omitted exhibits and schedules).
2.17(p) -- Asset Purchase Agreement dated June 13, 1996 between
Evergreen Media Corporation of Los Angeles and Greater
Washington Radio, Inc. (see table of contents for list of
omitted exhibits and schedules).
2.18(p) -- Asset Exchange Agreement dated June 13, 1996 among
Evergreen Media Corporation of Los Angeles, Evergreen
Media Corporation of the Bay State, WKLB License Corp.,
Greater Media Radio, Inc. and Greater Washington Radio,
Inc. (see table of contents for list of omitted exhibits
and schedules).
2.19(p) -- Purchase Agreement dated June 27, 1996 between WEDR,
Inc., and Evergreen Media Corporation of Los Angeles.
(See table of contents for list of omitted schedules).
2.20(p) -- Time Brokerage Agreement dated July 10, 1996 by and
between Evergreen Media Corporation of Detroit, as
Licensee, and Kidstar Interactive Media Incorporated, as
Time Broker.
</TABLE>
<PAGE> 355
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.21(p) -- Asset Purchase Agreement dated July 15, 1996 by and among
Century Chicago Broadcasting L.P., Century Broadcasting
Corporation, Evergreen Media Corporation of Los Angeles
and Evergreen Media Corporation of Chicago.
2.22(p) -- Asset Purchase Agreement dated August 12, 1996 by and
among Chancellor Broadcasting Company, Shamrock
Broadcasting, Inc. and Evergreen Media Corporation of the
Great Lakes.
2.23(p) -- Asset Purchase Agreement dated as of August 12, 1996
between Secret Communications Limited Partnership and
Evergreen Media Corporation of Los Angeles (WQRS-FM).
(See table of contents for list of omitted exhibits and
schedules)
2.24(p) -- Asset Purchase Agreement dated as of August 12, 1996
between Secret Communications Limited Partnership and
Evergreen Media Corporation of Los Angeles. (See table of
contents for list of omitted schedules)
2.25(q) -- Letter of intent dated August 27, 1996 between EZ
Communications, Inc. and Evergreen Media Corporation.
2.26(q) -- Asset Purchase Agreement dated September 19, 1996 between
Beasley-FM Acquisition Corp., WDAS License Limited
Partnership and Evergreen Media Corporation of Los
Angeles.
2.27(q) -- Asset Purchase Agreement dated September 19, 1996 between
The Brown Organization and Evergreen Media Corporation of
Los Angeles.
2.28(r) -- Stock Purchase Agreement by and between Viacom
International Inc. and Evergreen Media Corporation of Los
Angeles, dated February 16, 1997 (See table of contents
for omitted schedules and exhibits).
2.29(r) -- Agreement and Plan of Merger, by and among Evergreen
Media Corporation, Chancellor Broadcasting Company and
Chancellor Radio Broadcasting Company, dated as of
February 19, 1997.
2.30(r) -- Stockholders Agreement, by and among Chancellor
Broadcasting Company, Evergreen Media Corporation, Scott
K. Ginsburg (individually and as custodian for certain
shares held by his children), HM2/Chancellor, L.P.,
Hicks, Muse, Tate & First Equity Fund II, L.P., HM2/HMW,
L.P., The Chancellor Business Trust, HM2/HMD Sacramento
GP, L.P., Thomas O. Hicks, as Trustee of the William Cree
Hicks 1992 Irrevocable Trust, Thomas O. Hicks, as Trustee
of the Catherine Forgave Hicks 1993 Irrevocable Trust,
Thomas O. Hicks, as Trustee of the John Alexander Hicks
984 Trust, Thomas O. Hicks, as Trustee of the Mack Hardin
Hicks 1984 Trust, Thomas O. Hicks, as Trustee of Robert
Bradley Hicks 1984 Trust, Thomas O. Hicks, as Trustee of
the Thomas O. Hicks, Jr. 1984 Trust, Thomas O. Hicks and
H. Rand Reynolds, as Trustees for the Muse Children's GS
Trust, and Thomas O. Hicks, dated as of February 19,
1997.
</TABLE>
<PAGE> 356
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.31(r) -- Joint Purchase Agreement, by and among Chancellor Radio
Broadcasting Company, Chancellor Broadcasting Company,
Evergreen Media Corporation of Los Angeles, and Evergreen
Media Corporation, dated as of February 19, 1997.
2.32(s) -- Asset Exchange Agreement, by and among EZ Communications,
Inc., Professional Broadcasting Incorporated, EZ
Philadelphia, Inc., Evergreen Media Corporation of Los
Angeles, Evergreen Media Corporation of Charlotte,
Evergreen Media Corporation of the East, Evergreen Media
Corporation of Carolinaland, WBAV/ WBAV-FM/WPEG License
Corp. and WRFX License Corp., dated as of December 5,
1996 (See table of contents for list of omitted
schedules).
2.33(s) -- Asset Purchase Agreement, by and among EZ Communications,
Inc., Professional Broadcasting Incorporated, EZ
Charlotte, Inc., Evergreen Media Corporation of Los
Angeles, Evergreen Media Corporation of the East and
Evergreen Media Corporation of Carolinaland, dated as of
December 5, 1996 (See table of contents for list of
omitted schedules).
2.34(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: WGCI-AM and WGCI-FM), dated as of April
4, 1997 (see table of contents for list of omitted
schedules and exhibits).
2.35(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: KKBQ-AM and KKBQ-FM), dated as of April
4, 1997 (see table of contents for list of omitted
schedules and exhibits).
2.36(t) -- Asset Purchase Agreement by and between Pacific and
Southern Company, Inc. and Evergreen Media Corporation of
Los Angeles (re: KHKS-FM), dated as of April 4, 1997 (see
table of contents for list of omitted schedules and
exhibits).
2.41(y) -- Amended and Restated Agreement and Plan of Merger among
Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company, Evergreen Media Corporation,
Evergreen Mezzanine Holdings Corporation and Evergreen
Media Corporation of Los Angeles, dated as of February
19, 1997, amended and restated as of July 31, 1997.
2.42(gg) -- Option Agreement, by and among Evergreen Media
Corporation, Chancellor Broadcasting Company, Bonneville
International Corporation and Bonneville Holding Company,
dated as of August 6, 1997.
2.43(ss) -- Letter Agreement, dated February 20, 1998, between CMCLA
and Capstar Broadcasting Corporation.
2.44(yy) -- Amendment No. 1, dated May 19, 1998, to Letter Agreement
dated February 20, 1998, between CMCLA and Capstar
Broadcasting Corporation.
</TABLE>
<PAGE> 357
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
2.45(yy) -- Unit and Stock Purchase Agreement by and among CMCLA,
Martin Media, L.P., Martin & MacFarlane, Inc., Nevada
Outdoor Systems, Inc., MW Sign Corp. and certain sellers
named therein, dated as of June 19, 1998 (see table of
contents for list of omitted schedules and exhibits).
2.46(yy) -- Agreement and Plan of Merger between Chancellor Media
Corporation and Ranger Equity Holdings Corporation dated
as of July 7, 1998.
2.47(yy) -- Asset Purchase Agreement, dated August 11, 1998, between
Chancellor Media Corporation of Los Angeles and
Independent Group Limited Partnership.
2.48(yy) -- Asset Purchase Agreement, dated August 11, 1998, between
Chancellor Media Corporation of Los Angeles and Zapis
Communications Corporation.
2.49(yy) -- Stock Purchase Agreement, dated August 11, 1998, among
Chancellor Media Corporation of Los Angeles, Young Ones,
Inc., Zebra Broadcasting Corporation and the Sellers
named therein.
2.50(yy) -- Stock Purchase Agreement, dated August 11, 1998, among
Chancellor Media Corporation of Los Angeles, ML Media
Partners LP., Wincom Broadcasting Corporation and WIN
Communications, Inc.
2.51(yy) -- Stock Purchase and Merger Agreement, dated July 9, 1998,
by and among Chancellor Media Corporation, Chancellor
Mexico LLC, Grupo Radio Centro, S.A. De C.V., and the
Selling Shareholders.
2.52+ -- Asset Purchase Agreement, dated August 30, 1998, by and
among Chancellor Media Corporation of Los Angeles,
Whiteco Industries Inc. and Metro Management Associates.
3.3(ff) -- Certificate of Incorporation of Chancellor Media
Corporation of Los Angeles, formerly known as Evergreen
Media Corporation.
3.3A(pp) -- Amendment to Certificate of Incorporation of Chancellor
Media Corporation of Los Angeles, filed September 5,
1997.
3.3B(uu) -- Amendment to the Certificate of Incorporation of
Chancellor Media Corporation, filed October 28, 1997.
3.4(ff) -- Bylaws of Chancellor Media Corporation of Los Angeles.
3.5* -- Certificate of Incorporation of Chancellor Media of the
Lone Star State.
3.6* -- Bylaws of Chancellor Media Corporation of the Lone Star
State.
3.7* -- Certificate of Incorporation of KZPS/KDGE License Corp.
3.8* -- Bylaws of KZPS/KDGE License Corp.
3.9* -- Certificate of Incorporation of Chancellor Media
Corporation of California.
3.10* -- Bylaws of Chancellor Media Corporation of California.
3.11* -- Certificate of Incorporation of KIOI License Corp.
3.12* -- Bylaws of KIOI License Corp.
</TABLE>
<PAGE> 358
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.13* -- Certificate of Incorporation of Chancellor Media
Corporation of Illinois.
3.14* -- Bylaws of Chancellor Media Corporation of Illinois.
3.15* -- Certificate of Incorporation of Chancellor Media Illinois
License Corp.
3.16* -- Bylaws of Chancellor Media Illinois License Corp.
3.17* -- Certificate of Incorporation of Chancellor Media
Corporation of Dade County.
3.18* -- Bylaws of Chancellor Media Corporation of Dade County.
3.19* -- Certificate of Incorporation of WVCG License Corp.
3.20* -- Bylaws of WVCG License Corp.
3.21* -- Certificate of Incorporation of Chancellor Media
Corporation of Massachusetts.
3.22* -- Bylaws of Chancellor Media Corporation of Massachusetts.
3.23* -- Certificate of Incorporation of Chancellor Media
Pennsylvania License Corp.
3.24* -- Bylaws of Chancellor Media Pennsylvania License Corp.
3.25* -- Certificate of Incorporation of Chancellor Media
Corporation of Miami.
3.26* -- Bylaws of Chancellor Media Corporation of Miami.
3.27* -- Certificate of Incorporation of WEDR License Corp.
3.28* -- Bylaws of WEDR License Corp.
3.29* -- Agreement of Limited Partnership of Chancellor Media
Corporation of Houston Limited Partnership.
3.30* -- Certificate of Incorporation of Chancellor Media
Corporation of Houston.
3.31* -- Bylaws of Chancellor Media Corporation of Houston.
3.32* -- Certificate of Incorporation of Chancellor Media
Corporation of the Keystone State.
3.33* -- Bylaws of Chancellor Media Corporation of the Keystone
State.
3.34* -- Certificate of Incorporation of Chancellor Media
Corporation of New York.
3.35* -- Bylaws of Chancellor Media Corporation of New York.
3.36* -- Certificate of Incorporation of Chancellor Media
Corporation of Charlotte.
3.37* -- Bylaws of Chancellor Media Corporation of Charlotte.
3.38* -- Certificate of WIOQ License Corp.
3.39* -- Bylaws of WIOQ License Corp.
3.40* -- Certificate of Incorporation of Chancellor Media
Corporation of Washington, D.C.
3.41* -- Bylaws of Chancellor Media Corporation of Washington,
D.C.
3.42* -- Certificate of Incorporation of Chancellor Media
Corporation of St. Louis.
</TABLE>
<PAGE> 359
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.43* -- Bylaws of Chancellor Media Corporation of St. Louis.
3.44* -- Certificate of Incorporation of Chancellor Media
Corporation of Michigan.
3.45* -- Bylaws of Chancellor Media Corporation of Michigan.
3.46* -- Certificate of Incorporation of Chancellor Media/WAXQ
License Corp.
3.47* -- Bylaws of Chancellor Media/WAXQ License Corp.
3.48* -- Certificate of WAXQ License Corp.
3.49* -- Bylaws of WAXQ License Corp.
3.50* -- Certificate of Incorporation of Chancellor Media/KCMG
Inc.
3.51* -- Bylaws of Chancellor Media/KCMG Inc.
3.52* -- Certificate of Incorporation of Chancellor
Media/Riverside Broadcasting Co., Inc.
3.53* -- Bylaws of Chancellor Media/Riverside Broadcasting Co.,
Inc.
3.54* -- Certificate of Incorporation of WLTW License Corp.
3.55* -- Bylaws of WLTW License Corp.
3.56* -- Certificate of Incorporation of Chancellor Media
Corporation of the Capital City.
3.57* -- Bylaws of Chancellor Media Corporation of the Capital
City.
3.58* -- Certificate of Incorporation of Chancellor Media D.C.
License Corp.
3.59* -- Bylaws of Chancellor Media D.C. License Corp.
3.60* -- Certificate of Incorporation of Chancellor Media Licensee
Company.
3.61* -- Bylaws of Chancellor Media Licensee Company.
3.62* -- Certificate of Incorporation of Chancellor Media/Trefoil
Communications, Inc.
3.63* -- Amended and Restated Bylaws of Chancellor Media/Trefoil
Communications, Inc.
3.64* -- Certificate of Incorporation of Chancellor Media/Shamrock
Broadcasting, Inc.
3.65* -- Amended and Restated Bylaws of Chancellor Media/Shamrock
Broadcasting, Inc.
3.66* -- Certificate of Incorporation of Chancellor Media/Shamrock
Radio Licenses, Inc.
3.67* -- Bylaws of Chancellor Media/Shamrock Radio Licenses, Inc.
3.68* -- Certificate of Incorporation of Chancellor Media/Shamrock
Broadcasting Licenses of Denver, Inc.
3.69* -- Bylaws of Chancellor Media/Shamrock Broadcasting Licenses
of Denver, Inc.
3.70* -- Articles of Incorporation of Chancellor Media/Shamrock
Broadcasting of Texas, Inc.
</TABLE>
<PAGE> 360
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.71* -- Amended and Restated Bylaws of Chancellor Media/Shamrock
Broadcasting of Texas, Inc.
3.72* -- Limited Liability Company Agreement of Chancellor
Media/Shamrock Radio Licenses, LLC.
3.73* -- Certificate of Incorporation of Chancellor Media Outdoor
Corporation.
3.74* -- Bylaws of Chancellor Media Outdoor Corporation.
3.75* -- Certificate of Incorporation of Chancellor Media Nevada
Sign Corporation.
3.76* -- Bylaws of Chancellor Media Nevada Sign Corporation.
3.77* -- Certificate of Incorporation of Chancellor Media MW Sign
Corporation.
3.78* -- Bylaws of Chancellor Media MW Sign Corporation.
3.79* -- Certificate of Incorporation of Chancellor Media Martin
Corporation.
3.80* -- Bylaws of Chancellor Media Martin Corporation.
3.81* -- Articles of Incorporation of Western Poster, Inc.
3.82* -- Bylaws of Western Poster, Inc.
3.83* -- Certificate of Incorporation of The AMFM Radio Networks,
Inc.
3.84* -- Bylaws of The AMFM Radio Networks, Inc.
3.85* -- Certificate of Incorporation of Chancellor Media Air
Services Corporation.
3.86* -- Bylaws of Chancellor Media Air Services Corporation.
3.87* -- Certificate of Incorporation of Chancellor Media Whiteco
Outdoor Corporation.
3.88* -- Bylaws of Chancellor Media Whiteco Outdoor Corporation.
3.89* -- Certificate of Incorporation of Chancellor Merger Corp.
3.90* -- Bylaws of Chancellor Merger Corp.
3.91* -- Articles of Organization of Broadcast Architecture, Inc.
3.92* -- Bylaws of Broadcast Architecture, Inc.
3.93+ -- Agreement of Limited Partnership of Martin Media.
3.94* -- Articles of Incorporation of Dowling Company
Incorporated.
3.95* -- Bylaws of Dowling Company Incorporated.
3.96* -- Articles of Incorporation of Nevada Outdoor Systems, Inc.
3.97* -- Bylaws of Nevada Outdoor Systems, Inc.
3.98* -- Articles of Incorporation of MW Sign Corp.
3.99* -- Bylaws of MW Sign Corp.
3.100* -- Articles of Incorporation of Martin & MacFarlane, Inc.
3.101* -- Bylaws of Martin & MacFarlane, Inc.
3.102* -- Certificate of Incorporation of Katz Media Corporation.
3.103* -- Bylaws of Katz Media Corporation.
3.104* -- Certificate of Incorporation of Katz Communications, Inc.
</TABLE>
<PAGE> 361
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.105* -- Bylaws of Katz Communications, Inc.
3.106* -- Certificate of Incorporation of Katz Millennium
Marketing, Inc.
3.107* -- Bylaws of Katz Millennium Marketing, Inc.
3.108* -- Certificate of Incorporation of Amcast Radio Sales, Inc.
3.109* -- Bylaws of Amcast Radio Sales, Inc.
3.110* -- Certificate of Incorporation of Christal Radio Sales,
Inc.
3.111* -- Amended and Restated Bylaws of Christal Radio Sales, Inc.
3.112* -- Certificate of Incorporation of Eastman Radio Sales, Inc.
3.113* -- Bylaws of Eastman Radio Sales, Inc.
3.114* -- Certificate of Incorporation of Seltel, Inc.
3.115* -- Bylaws of Seltel, Inc.
3.116* -- Certificate of Incorporation of Katz Cable Corporation.
3.117* -- Amended and Restated Bylaws of Katz Cable Corporation.
3.118* -- Certificate of Incorporation of The National Payroll
Company, Inc.
3.119* -- Bylaws of The National Payroll Company, Inc.
3.120* -- Limited Liability Company Agreement of Chancellor Media
Radio Licenses, LLC
3.121* -- Agreement of Limited Partnership of KLOL License Limited
Partnership.
3.122* -- Agreement of Limited Partnership of WTOP License Limited
Partnership.
3.123* -- Certificate of Formation of Radio 100, L.L.C.
4.10(t) -- Second Amended and Restated Loan Agreement dated as of
April 25, 1997 among Evergreen Media Corporation of Los
Angeles, the financial institutions whose names appear as
Lenders on the signature pages thereof (the "Lenders"),
Toronto Dominion Securities, Inc., as Arranging Agent,
The Bank of New York and Bankers Trust Company, as
Co-Syndication Agents, NationsBank of Texas, N.A. and
Union Bank of California, as Co-Documentation Agents, and
Toronto Dominion (Texas), Inc., as Administrative Agent
for the Lenders, together with certain collateral
documents attached thereto as exhibits, including
Assignment of Partnership Interests, Assignment of Trust
Interests, Borrower's Pledge Agreement, Parent Company
Guaranty, Stock Pledge Agreement, Subsidiary Guaranty and
Subsidiary Pledge Agreement (see table of contents for
list of omitted schedules and exhibits.
4.11(z) -- First Amendment to Second Amended and Restated Loan
Agreement, dated June 26, 1997, among Evergreen Media
Corporation of Los Angeles, the Lenders, the Agents and
the Administrative Agent.
4.15(aa) -- Indenture, dated as of February 14, 1996, governing the
9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
</TABLE>
<PAGE> 362
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.16(bb) -- First Supplemental Indenture, dated as of February 14,
1996, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.17(cc) -- Indenture, dated as of February 26, 1996, governing the
12 1/4% Subordinated Exchange Debentures due 2008 of
CMCLA.
4.18(dd) -- Indenture, dated as of January 23, 1997, governing the
12% Subordinated Exchange Debentures due 2009 of CMCLA.
4.19(ee) -- Indenture, dated as of June 24, 1997, governing the
8 3/4% Senior Subordinated Notes due 2007 of CMCLA.
4.21(ff) -- Specimen of the 12 1/4% Series A Senior Cumulative
Exchangeable Preferred Stock Certificate of CMCLA.
4.22(ff) -- Specimen of the 12% Exchangeable Preferred Stock
Certificate of CMCLA.
4.23(ff) -- Form of Certificate of Designation for the 12 1/4% Series
A Senior Cumulative Exchangeable Preferred Stock of
CMCLA.
4.24(ff) -- Form of Certificate of Designation for the 12%
Exchangeable Preferred Stock of CMCLA.
4.25(pp) -- Second Amendment to Second Amended and Restated Loan
Agreement, dated August 7, 1997, among Evergreen Media
Corporation of Los Angeles, the Lenders, the Agents and
the Administrative Agent.
4.26(hh) -- Second Supplemental Indenture, dated as of April 15,
1997, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.27(pp) -- Third Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated February 14, 1996, governing
the 9 3/8% Senior Subordinated Notes due 2004 of CMCLA.
4.28(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated June 24, 1997, governing the
8 3/4% Senior Subordinated Notes due 2007 of CMCLA.
4.29(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated February 26, 1997, governing
the 12 1/4% Subordinated Exchange Debentures due 2008 of
CMCLA.
4.30(pp) -- First Supplemental Indenture, dated as of September 5,
1997, to the Indenture dated January 23, 1997, governing
the 12% Subordinated Exchange Debentures due 2009 of
CMCLA.
4.34(uu) -- Amended and Restated Indenture, dated as of October 28,
1997, governing the 10 1/2% Senior Subordinated Notes due
2007 of CMCLA.
4.35(uu) -- Second Supplement Indenture, dated as of October 28,
1997, to the Amended and Restated Indenture dated October
28, 1997 governing the 10 1/2% Senior Subordinated Notes
due 2007 of CMCLA.
4.36(uu) -- Third Amendment to Second Amended and Restated Loan
Agreement, dated October 28, 1997, among CMCLA, the
Lenders, the Agents and the Administrative Agent.
</TABLE>
<PAGE> 363
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.37(uu) -- Fourth Amendment to Second Amended and Restated Loan
Agreement, dated February 10, 1998, among CMCLA, the
Lenders, the Agents and the Administrative Agent.
4.38(vv) -- Indenture, dated as of December 22, 1997, governing the
8 1/8% Senior Subordinated Notes due 2007 of CMCLA.
4.39(ww) -- Fifth Amendment to Second Amended and Restated Loan
Agreement, dated May 1, 1998, among CMCLA, the Lenders,
the Agents and the Administrative Agent.
4.40(yy) -- Sixth Amendment to Second Amended and Restated Loan
Agreement, dated July 31, 1998, among CMCLA, the Lenders,
the Agents and the Administrative Agent.
4.41* -- Indenture, dated as of September 30, 1998, governing the
9% Senior Subordinated Notes due 2008 of CMCLA.
4.42* -- Purchase Agreement, dated as of September 25, 1998, among
CMCLA, the Guarantors named therein and Goldman, Sachs &
Co.
4.43* -- Registration Rights Agreement, dated as of September 30,
1998, among CMCLA, the Guarantors named therein and
Goldman, Sachs & Co.
5.1* -- Opinion of Weil, Gotshal & Manges LLP.
10.23(xx) -- Amended and Restated Chancellor Media Corporation Stock
Option Plan for Non-employee Directors.
10.26(n)** -- Employment Agreement dated February 9, 1996 by and
between Evergreen Media Corporation and Kenneth J.
O'Keefe.
10.28(o) -- 1995 Stock Option Plan for executive officers and key
employees of Evergreen Media Corporation.
10.30(pp)** -- First Amendment to Employment Agreement dated March 1,
1997 by and between Evergreen Media Corporation and
Kenneth J. O'Keefe.
10.31(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and Scott K. Ginsburg.
10.32(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and James de Castro.
10.33(pp)** -- Employment Agreement dated September 4, 1997 by and among
Evergreen Media Corporation, Evergreen Media Corporation
of Los Angeles and Matthew E. Devine.
10.34(pp)** -- Second Amendment to Employment Agreement dated September
4, 1997 by and among Evergreen Media Corporation,
Evergreen Media Corporation of Los Angeles and Kenneth J.
O'Keefe.
10.35(ii)** -- Employment Agreement dated February 14, 19965 by and
among Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company and Steven Dinetz.
10.36(jj) -- Chancellor Broadcasting Company 1996 Stock Award Plan.
</TABLE>
<PAGE> 364
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
10.37(kk) -- Chancellor Holdings Corp. 1994 Director Stock Option
Plan.
10.38(ll) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Steven Dinetz.
10.39(mm) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Eric W. Neumann.
10.40(nn) -- Stock Option Grant Letter dated September 30, 1996 from
Chancellor Corporation to Marvin Dinetz.
10.41(oo) -- Stock Option Grant Letter dated February 14, 1997 from
Chancellor Broadcasting Company to Carl M. Hirsch.
10.44(vv)** -- Agreement dated April 20, 1998 by and among Chancellor
Media Corporation, Chancellor Media Corporation of Los
Angeles and Scott K. Ginsburg.
10.45(vv)** -- Employment Agreement dated April 29, 1998 by and among
Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Jeffrey A. Marcus.
10.46(yy) -- Chancellor Media Corporation 1998 Stock Option Plan.
10.47(yy) -- Voting Agreement, among Chancellor Media Corporation and
Rangers Equity Partners, L.P. dated as of July 7, 1998.
10.48* -- Employment Agreement, dated as of May 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and James E. de Castro.
10.49* -- Employment Agreement, dated as of May 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Matthew E. Devine.
10.50* -- Employment Agreement, dated as of June 1, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and Eric C. Neuman.
10.51* -- Employment Agreement, dated as of August 18, 1998, by and
among Chancellor Media Corporation, Chancellor Media
Corporation of Los Angeles and James A. McLaughlin, Jr.
12.1* -- Chancellor Media Corporation of Los Angeles Computation
of Ratio of Earnings to Combined Fixed Charges.
23.1* -- Consent of Weil, Gotshal & Manges LLP (included as part
of their opinion listed as Exhibit 5.1).
23.2* -- Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.3* -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.4* -- Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.5* -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.6* -- Consent of Arthur Andersen LLP, independent accountants.
23.7* -- Consent of BDO Seidman, LLP, independent accountants.
24.1 -- Powers of Attorney (included on signature pages).
</TABLE>
<PAGE> 365
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
99.1* -- Form of Letter of Transmittal.
99.2* -- Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
* Filed herewith.
** Management Contract or Compensatory Agreement.
+ To be filed by amendment.
(a) Incorporated by reference to the identically numbered exhibit to the
Registration Statement on Form S-1, as amended (Reg. No. 33-60036), of
Evergreen Media Corporation ("Evergreen").
(f) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-4, as amended (Reg. No.
33-89838).
(h) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated July 14, 1995.
(i) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated January 17, 1996.
(j) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ending
June 30, 1995.
(k) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-1, as amended (Reg. No.
33-69752).
(n) Incorporated by reference to the identically numbered exhibit to
Evergreen's Annual Report on Form 10-K for the fiscal year ended December
31, 1995.
(o) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ending
March 31, 1996.
(p) Incorporated by reference to the identically numbered exhibit to
Evergreen's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1996.
(q) Incorporated by reference to the identically numbered exhibit to
Evergreen's Registration Statement on Form S-3, as amended (Reg. No.
333-12453).
(r) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated February 16, 1997 and filed
March 9, 1997.
(s) Incorporated by reference to the identically numbered exhibit to
Evergreen's Annual Report on Form 10-K for the fiscal year ended December
31, 1996.
(t) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated April 1, 1997 and filed May
9, 1997.
(y) Incorporated by reference to the identically numbered exhibit of
Evergreen's Registration Statement on Form S-4, filed August 1, 1997.
(z) Incorporated by reference to the identically numbered exhibit to
Evergreen's Current Report on Form 8-K dated July 7, 1997 and filed July
31, 1997.
(aa) Incorporated by reference to Exhibit 4.4 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company, as filed on February 29, 1996.
(bb) Incorporated by reference to Exhibit 4.5 to the Annual Report on Form
10-K of Chancellor Broadcasting Company, Chancellor Radio Broadcasting
Company and
<PAGE> 366
Chancellor Broadcasting Licensee Company for the fiscal year ended December 31,
1995.
(cc) Incorporated by reference to Exhibit 4.6 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company, as filed on February 29, 1996.
(dd) Incorporated by reference to Exhibit 4.7 to the Current Report on Form
8-K of Chancellor Radio Broadcasting Company, as filed on February 6,
1997.
(ee) Incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K of Chancellor Broadcasting Company and Chancellor Radio Broadcasting
Company as filed on July 17, 1997.
(ff) Incorporated by reference to the identically-numbered exhibit to the
Registration Statement on Form S-4 (Reg. No. 333-32259), dated July 29,
1997, as amended, of Evergreen Media Corporation of Los Angeles
("EMCLA").
(gg) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Evergreen and EMCLA for the quarterly
period ending June 30, 1997.
(hh) Incorporated by reference to Exhibit 4.8 to the Quarterly Report on Form
10-Q of Chancellor Broadcasting Company ("CBC") and CRBC for the
quarterly period ending March 31, 1997.
(ii) Incorporated by reference to Exhibit 10.6 to CBC's Registration Statement
on Form S-1 (Reg. No. 333-02782) filed February 9, 1996.
(jj) Incorporated by reference to Exhibit 4.22 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(kk) Incorporated by reference to Exhibit 4.23 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(ll) Incorporated by reference to Exhibit 4.24 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(mm) Incorporated by reference to Exhibit 4.25 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(nn) Incorporated by reference to Exhibit 4.26 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(oo) Incorporated by reference to Exhibit 4.27 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-35039), dated September
5, 1997.
(pp) Incorporated by reference to the identically numbered exhibit to the
CMCLA's Registration Statement on Form S-4 (Reg. No. 333-36451), dated
September 26, 1997, as amended.
(ss) Incorporated by reference to the identically numbered exhibit to the
Current Report on Form 8-K of Chancellor Media and CMCLA, dated as of
February 23, 1998 and filed as of February 27, 1998.
(tt) Incorporated by reference to the identically numbered exhibit to the
Annual Report on Form 10-K of Chancellor Media and the CMCLA for the
fiscal year ended December 31, 1997.
<PAGE> 367
(uu) Incorporated by reference to the identically numbered exhibit to the
Annual Report on Form 10-K of Chancellor and CMCLA for the fiscal year
ended December 31, 1997.
(vv) Incorporated by reference to the identically numbered exhibit to CMCLA's
Registration Statement on Form S-4 (Reg. No. 333-50739), dated April 22,
1998, as amended.
(ww) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Chancellor Media and CMCLA for the
quarterly period ending March 31, 1998.
(xx) Incorporated by reference to Exhibit 4.41 to Chancellor Media's
Registration Statement on Form S-8 (Reg. No. 333-53179), dated May 20,
1998.
(yy) Incorporated by reference to the identically numbered exhibit to the
Quarterly Report on Form 10-Q of Chancellor Media and CMCLA for the
quarterly period ending June 30, 1998.
<PAGE> 1
EXHIBIT 3.5
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA/KYSR INC.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT
11:04 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229242
DATE: 07-31-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA/KYSR INC.
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media/KYSR, Inc. Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Lone Star State shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
<PAGE> 3
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 4
Dated: July 31, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
BY: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 5
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF TIBURON", A DELAWARE
CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR
STATE" UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE
LONE STAR STATE", A CORPORATION ORGANIZED AND EXISTING UNDER THE
LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 11:03 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[SEAL] -------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229222
DATE: 07-31-98
<PAGE> 6
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF TIBURON
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of Tiburon Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to
the merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements of
Section 251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor
Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Lone Star State shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
<PAGE> 7
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 433 E. Las
Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 8
Dated: July 31, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
---------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 9
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA/WLIT INC.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT
11:02 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229184
DATE: 07-31-98
<PAGE> 10
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA/WLIT INC.
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporation of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media/WLIT Inc. Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Lone Star State shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
<PAGE> 11
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 12
Date: July 31, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 13
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF THE LIBERTY CITY", A DELAWARE
CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT
11:01 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229173
DATE: 07-31-98
<PAGE> 14
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE LIBERTY CITY
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of the Liberty City Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Lone Star State shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of
<PAGE> 15
business of the surviving corporation is 433 E. Las Colinas Blvd., Suite 1130,
Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 16
Dated: July 31, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
---------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 17
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF THE GREAT LAKES", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT
12:03 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9226241
DATE: 07-30-98
<PAGE> 18
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE GREAT LAKES
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of the Great Lakes Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation
of the Lone Star State shall be the Certificate of Incorporation of the
surviving corporation, to remain unchanged until amended in accordance with the
provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished
by the surviving corporation on request and without cost to any stockholder of
any constituent corporation.
<PAGE> 19
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 20
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF THE MOTOR CITY", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT
12:04 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9226256
DATE: 07-30-98
<PAGE> 21
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE MOTOR CITY
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of the Motor City Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Lone Star State shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 22
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 23
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 24
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF MICHIGAN", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT
12:02 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9226215
DATE: 07-30-98
<PAGE> 25
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF MICHIGAN
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of Michigan Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor
Media Corporation of the Lone Star State shall be the Certificate of
Incorporation of the surviving corporation, to remain unchanged until amended
in accordance with the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is
on file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger
will be furnished by the surviving corporation on request and without cost to
any stockholder of any constituent corporation.
<PAGE> 26
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
BY: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 27
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF SAN FRANCISCO", A DELAWARE
CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
UNDER THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT
12:01 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9226201
DATE: 07-30-98
<PAGE> 28
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF SAN FRANCISCO
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
- ---- ----------------------
<S> <C>
Chancellor Media Corporation of San Francisco Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
the Lone Star State shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
<PAGE> 29
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 30
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF CHICAGOLAND", A DELAWARE CORPORATION,
"CHANCELLOR MEDIA CORPORATION OF DALLAS", A DELAWARE CORPORATION,
"CHANCELLOR MEDIA CORPORATION OF DETROIT", A DELAWARE CORPORATION,
"CHANCELLOR MEDIA CORPORATION OF NEW YORK", A DELAWARE CORPORATION,
"CHANCELLOR MEDIA PARTNERS CORPORATION", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT 12 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
---------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9226161
DATE: 07-30-98
<PAGE> 31
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA PARTNERS CORPORATION,
CHANCELLOR MEDIA CORPORATION OF CHICAGOLAND,
CHANCELLOR MEDIA CORPORATION OF DALLAS,
CHANCELLOR MEDIA CORPORATION OF DETROIT
AND
CHANCELLOR MEDIA CORPORATION OF NEW YORK
INTO
CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
- ---- ----------------------
<S> <C>
Chancellor Media Partners of Corporation Delaware
Chancellor Media Corporation of Chicagoland Delaware
Chancellor Media Corporation of Dallas Delaware
Chancellor Media Corporation of Detroit Delaware
Chancellor Media Corporation of New York Delaware
Chancellor Media Corporation of the Lone Star State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Lone Star State.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
the Lone Star State shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
<PAGE> 32
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
2
<PAGE> 33
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE
By: /s/ Andrea Hulcy
---------------------------
Andrea Hulcy
Vice President and
Assistant Secretary
3
<PAGE> 34
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF CHICAGO FM" TO "CHANCELLOR MEDIA CORPORATION OF
THE LONE STAR STATE", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D.
1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ Edward J. Freel
--------------------------
Edward J. Freel,
Secretary of State
AUTHENTICATION: 8712350
DATE: 10-21-97
<PAGE> 35
EXHIBIT D-1
List of EQK Exceptions
As of August 7, 1998
[Exceptions to Representations and Warranties of EQK contained in
Article III]
As toss.3.07(c): The following tenant allowances in excess of $25,000 have been
committed to and/or paid since March 31, 1998: Cafe Matangos
($85,000 commitment, of which $28,333 has been paid); The Gap
($375,000 commitment, lease net yet executed); Radio Shack
($35,000 commitment, which has not been paid); Joy Buster Brown
($100,000 commitment, lease not yet executed); Strictly Nails
($30,000 commitment, lease not yet executed); Lady Footlocker
($35,000 commitment, lease not yet executed); and Kay Bee Toys
($40,000 commitment, lease not het executed).
As to ss.3.07(m) The following capital
expenditures in excess of $25,000 have been
made or committed to subsequent to March 31,
1998: parking lot overlay ($70,408 paid);
and roof repairs ($148,109 commited, of
which $147,505 has been paid.
<PAGE> 36
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
Pursuant to Section 242 of the General Incorporation Law of
the State of Delaware, Evergreen Media Corporation of Chicago FM (the
"Corporation"), a Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF THE LONE STAR STATE"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM,
a Delaware Corporation
By: /s/ Omar Chourcair
--------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 37
EXHIBIT D-2
List of ART Exceptions
None.
<PAGE> 38
PAGE 1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", FILED IN THIS
OFFICE ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8705615
DATE: 10-16-97
<PAGE> 39
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of
Delaware is 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. The nature of business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one
thousand (1,000) shares of common stock, with a par value of $1.00 per share.
All voting rights and powers shall be vested exclusively in the holders of
common stock on the basis of one vote per share, on all matters required or
permitted to be approved by vote of the corporation's stockholders.
FIFTH. The Name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 40
SIXTH. The name of the person who is to serve as the initial
director of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to make,
alter or repeal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot
unless the by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware.
All rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 41
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate herein
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 20th day of
June, 1988.
/s/ Eve M. Ellison
-----------------------------------
Eve M. Ellison
Incorporator
<PAGE> 42
PAGE 1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGES:
"H&G COMMUNICATIONS OF CHICAGO FM, INC.", A HAWAII CORPORATION,
WITH AND INTO "EVERGREEN MEDIA CORPORATION OF CHICAGO FM" UNDER THE
NAME OF "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE THIRTIETH DAY OF JUNE, A.D. 1988, AT 9:15 O'CLOCK A.M.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8705616
DATE: 10-16-97
<PAGE> 43
PLAN AND AGREEMENT OF MERGER
AGREEMENT OF MERGER made this 27th day of June, 1988, between H&G
Communications of Chicago FM, Inc., a Hawaii corporation, hereinafter called H&G
of Chicago FM, and Evergreen Media Corporation of Chicago FM, a Delaware
corporation, hereinafter called the Company.
WHEREAS, H&G of Chicago FM has an authorized capital stock consisting of
1,000 shares of common stock, par value $1.00 per share, of which 1,000
shares have been duly issued and are now outstanding, and
WHEREAS, the Company has an authorized capital stock consisting of 1,000
shares of common stock, par value $1.00 per share, of which 1,000 shares have
been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of H&G of Chicago FM and the Company,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their mutual sole shareholder H&G Communications,
Inc., that H&G of Chicago FM merge with the Company under and pursuant to the
provisions of the Business Corporation Act of the State of Hawaii and of the
General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. Merger. H&G of Chicago FM shall be and, subject to compliance with the
laws of the States of Hawaii and Delaware as set forth below, it hereby is
merged into the Company.
2. Effective Date. This Agreement of Merger shall become effective
immediately upon compliance with all requirements to effectiveness under the
laws of the States of Hawaii and Delaware, the time of such effectiveness being
hereinafter called the Effective Date.
3. Surviving Corporation. The Company shall survive the merger herein
contemplated and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of H&G of Chicago FM shall cease
forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of the Company
following the Effective Date shall be 1,000 shares of Common Stock, par value
$1.00 share,
<PAGE> 44
unless and until the same shall be changed in accordance with the laws of the
State of Delaware.
5. Certificate of Incorporation. The Certificate of Incorporation of the
Company as of the date hereof, which is set forth as Appendix A hereto, shall be
the Certificate of Incorporation of the Company following the Effective Date
until such time, if ever, when the same shall be amended in accordance with its
terms and with the laws of the State of Delaware.
6. Bylaws. The Bylaws of the Company as they exist on the Effective Date
shall be the Bylaws of the Company following the Effective Date unless and until
the same shall be amended or repealed in accordance with the provisions thereof.
7. Board of Directors and Officers. The members of the Board of Directors
and the officers of the Company immediately after the effective time of the
merger shall be those persons who were the members of the Board of Directors and
the officers, respectively, of the Company immediately prior to the effective
time of the merger, and such persons shall serve in such offices, respectively,
for the terms provided by law or in the Bylaws, or until their respective
successors are elected and qualified.
8. Further Assurance of Title. If at any time the Company shall consider or
be advised that any acknowledgements or assurances in law or other similar
actions are necessary or desirable in order to acknowledge or confirm in and to
the Company any right, title or interest of H&G of Chicago FM held immediately
prior to the Effective Date, H&G of Chicago FM and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title or interest in the Company as shall be necessary to
carry out the purposes of this Agreement of Merger, and the Company and the
proper officers and directors thereof are fully authorized to take any and all
such action in the name of H&G of Chicago FM or otherwise.
9. Retirement of Organization Stock. Forthwith upon the Effective Date,
each of the 1,000 shares of the Common Stock of the Company presently issued and
outstanding shall be retired, and no shares of the Common Stock or other
securities of the Company shall be issued in respect thereof.
10. Conversion of Outstanding Stock. Forthwith upon the Effective Date,
each of the issued and outstanding shares of Common Stock of H&G of Chicago FM
and all rights in respect thereof shall be converted into one fully paid and
nonassessable share of Common Stock of the Company, and each
2
<PAGE> 45
certificate nominally representing shares of Common Stock of H&G of Chicago FM
shall for all purposes be deemed to evidence the ownership of a like number of
shares of Common Stock of the Company.
11. Rights and Liabilities of the Company. At and after the effective time
of the merger, the Company shall succeed to and possess, without further act or
deed, all of the estate, rights, privileges, powers and franchises, both public
and private, and all of the property, real, personal and mixed, of each of the
parties hereto; all debts due to H&G of Chicago FM or whatever account shall be
vested in the Company; all claims, demands, property, rights, privileges,
powers and franchises and every other interest of either of the parties hereto
shall be as effectively the property of the Company as they were of the
respective parties hereto; the title to any real estate vested by deed or
otherwise in H&G of Chicago FM shall not revert or be in any way impaired by
reason of the merger, but shall be vested in the Company; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be preserved unimpaired, limited in lien to the property affected by such lien
at the effective time of the merger; all debts, liabilities and duties of the
respective parties hereto shall thenceforth attach to the Company and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
12. Book Entries. The merger contemplated hereby shall be treated as a
pooling of interests and as of the Effective Date entries shall be made upon
the books of the Company in accordance with the following:
(a) The assets and liabilities of H&G of Chicago FM shall be recorded
at the amounts at which they are carried on the books of H&G of Chicago FM
immediately prior to the Effective Date with appropriate adjustment to
reflect the retirement of the 1,000 shares of Common Stock of the Company
presently issued and outstanding.
(b) There shall be credited to the Retained Earnings Account an amount
equal to that carried on the Retained Earnings Account of H&G of Chicago FM
immediately prior to the Effective Date.
13. Service of Process on the Company. The Company agrees that it may be
served with process in the State of Hawaii in any proceeding for enforcement of
any obligation of H&G of Chicago FM as well as for the enforcement of any
obligation of the Company arising from the merger.
3
<PAGE> 46
14. Plan of Reorganization. This Agreement of Merger constitutes a Plan of
Reorganization to be carried out in the manner, on the terms and subject to the
conditions herein set forth.
15. Counterparts. This Agreement of Merger may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC.
- ------------------------- BY:
Secretary ----------------------------
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
/s/ John D. Watson, Jr.
- ------------------------- BY: /s/ Scott K. Ginsburg
Assistant Secretary ----------------------------
Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 47
14. Plan of Reorganization. This Agreement of Merger constitutes a Plan of
Reorganization to be carried out in the manner, on the terms and subject to the
conditions herein set forth.
15. Counterparts. This Agreement of Merger may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC.
- ------------------------- BY: /s/ Earl McDaniel
Secretary ---------------------------
Earl McDaniel,
Chairman of the Board
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
- ------------------------- BY:
Assistant Secretary ----------------------------
Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 48
CERTIFICATE OF THE ASSISTANT SECRETARY
OF
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
(a Delaware Corporation)
I, John D. Watson, Jr., the Assistant Secretary of Evergreen Media
Corporation of Chicago FM, hereby certify that the Plan and Agreement of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President and Assistant Secretary under the
corporate seal of said corporation, was duly approved and adopted by the written
consent of the holder of all of the outstanding stock entitled to vote thereon.
WITNESS my hand and seal of said Evergreen Media Corporation of Chicago FM
this 27th day of June, 1988.
/s/ John D. Watson, Jr.
(SEAL) ---------------------------
Assistant Secretary
<PAGE> 49
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 50
SIXTH. The name of the person who is to serve as the initial director of
the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 51
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate herein declaring and certifying that
this is my act and deed and the facts herein stated are true, and accordingly
have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
--------------------------
Eve M. Ellison
Incorporator
<PAGE> 52
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "EVERGREEN MEDIA CORPORATION OF CHICAGO FM" IS DULY INCORPORATED UNDER
THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL
CORPORATE EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE SIXTH
DAY OF OCTOBER, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
[SEAL] /s/ Edward J. Freel
------------------------------------
Edward, J. Freel, Secretary of State
AUTHENTICATION: 8687312
DATE: 10-06-97
<PAGE> 53
2. Evergreen Media Corporation of Chicago FM:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
(MERGER W/ H&G COMMUNICATIONS OF CHICAGO FM, INC.)
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
<PAGE> 54
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF CHICAGO FM" FILED IN THIS
OFFICE ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ Michael Ratchford
-------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3646584
DATE: 11/03/1992
<PAGE> 55
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 56
SIXTH. The name of the person who is to serve as the initial director of
the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the power conferred by
statute, the board of directors is expressly authorized to make, alter or
repeal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 57
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
-----------------------------------
Eve M. Ellison
Incorporator
<PAGE> 58
PAGE 1
State of Delaware
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF EVERGREEN MEDIA CORPORATION OF CHICAGO FM FILED IN THIS OFFICE
ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
/s/ Michael Harkins
[SEAL] -----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1216897
DATE: 05/04/1989
<PAGE> 59
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 60
SIXTH. The name of the person who is to serve as the initial director of
the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 61
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate herein declaring and certifying that
this is my act and deed and the facts herein stated are true, and accordingly
have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
--------------------------
Eve M. Ellison
Incorporator
<PAGE> 62
State of Delaware
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF EVERGREEN MEDIA CORPORATION OF CHICAGO FM FILED IN THIS OFFICE
ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1758942
DATE: 06/23/1988
<PAGE> 63
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 64
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or
repeal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 65
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 66
State of Delaware
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF EVERGREEN MEDIA CORPORATION OF CHICAGO FM FILED IN THIS OFFICE
ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1758942
DATE: 06/23/1988
<PAGE> 67
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 68
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or
repeal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 69
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ EVE M. ELLISON
---------------------
Eve M. Ellison
Incorporator
<PAGE> 70
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER OF "H&G COMMUNICATIONS OF CHICAGO FM, INC." A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF HAWAII, MERGING WITH AND
INTO "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF "EVERGREEN
MEDIA CORPORATION OF CHICAGO FM" AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTIETH DAY OF JUNE, A.D. 1988, AT 9:15 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL
BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.
| | | | | | | | | |
[SEAL] /s/ MICHAEL HARKINS
738182028 ----------------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1770743
DATE: 06/30/1988
<PAGE> 71
PLAN AND AGREEMENT OF MERGER
AGREEMENT OF MERGER made this 27th day of June, 1988, between H&G
Communications of Chicago FM, Inc., a Hawaii corporation, hereinafter called
H&G of Chicago FM, and Evergreen Media Corporation of Chicago FM, a Delaware
corporation, hereinafter called the Company.
WHEREAS, H&G of Chicago FM has an authorized capital stock consisting of
1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares
have been duly issued and are now outstanding, and
WHEREAS, the Company has an authorized capital stock consisting of 1,000
shares of common stock, par value $1.00 per share, of which 1,000 shares have
been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of H&G of Chicago FM and the Company,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their mutual sole shareholder, H&G
Communications, Inc., that H&G of Chicago FM merge with the Company under and
pursuant to the provisions of the Business Corporation Act of the State of
Hawaii and of the General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. Merger. H&G of Chicago FM shall be and, subject to compliance with the
laws of the States of Hawaii and Delaware as set forth below, it hereby is
merged into the Company.
2. Effective Date. This Agreement of Merger shall become effective
immediately upon compliance with all requirements to effectiveness under the
laws of the States of Hawaii and Delaware, the time of such effectiveness being
hereinafter called the Effective Date.
3. Surviving Corporation. The Company shall survive the merger herein
contemplated and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of H&G of Chicago FM shall cease
forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of the Company
following the Effective Date shall be 1,000 shares of Common Stock, par value
$1.00 per share,
<PAGE> 72
unless and until the same shall be changed in accordance with the laws of the
State of Delaware.
5. Certificate of Incorporation. The Certificate of Incorporation of the
Company as of the date hereof, which is set forth as Appendix A hereto, shall
be the Certificate of Incorporation of the Company following the Effective
Date until such time, if ever, when the same shall be amended in accordance
with its terms and with the laws of the State of Delaware.
6. Bylaws. The Bylaws of the Company as they exist on the Effective Date
shall be the Bylaws of the Company following the Effective Date unless and
until the same shall be amended or repealed in accordance with the provisions
thereof.
7. Board of Directors and Officers. The members of the Board of Directors
and the officers of the Company immediately after the effective time of the
merger shall be those persons who were the members of the Board of Directors
and the officers, respectively, of the Company immediately prior to the
effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. Further Assurance of Title. If at any time the Company shall consider
or be advised that any acknowledgments or assurances in law or other similar
actions are necessary or desirable in order to acknowledge or confirm in and to
the Company any right, title or interest of H&G of Chicago FM held immediately
prior to the Effective Date, H&G of Chicago FM and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title or interest in the Company as shall be necessary to
carry out the purposes of this Agreement of Merger, and the Company and the
proper officers and directors thereof are fully authorized to take any and all
such action in the name of H&G of Chicago FM or otherwise.
9. Retirement of Organization Stock. Forthwith upon the Effective Date,
each of the 1,000 shares of the Common Stock of the Company presently issued
and outstanding shall be retired, and no shares of the Common Stock or other
securities of the Company shall be issued in respect thereof.
10. Conversion of Outstanding Stock. Forthwith upon the Effective Date,
each of the issued and outstanding shares of Common Stock of H&G of Chicago FM
and all rights in respect thereof shall be converted into one fully paid and
nonassessable share of Common Stock of the Company, and each
2
<PAGE> 73
certificate nominally representing shares of Common Stock of H&G of Chicago FM
shall for all purposes be deemed to evidence the ownership of a like number of
shares of Common Stock of the Company.
11. Rights and Liabilities of the Company. At and after the
effective time of the merger, the Company shall succeed to and possess, without
further act or deed, all of the estate, rights, privileges, powers and
franchises, both public and private, and all of the property, real, personal
and mixed, of each of the parties hereto; all debts due to H&G of Chicago FM or
whatever account shall be vested in the Company; all claims, demands, property,
rights, privileges, powers and franchises and every other interest of either of
the parties hereto shall be as effectively the property of the Company as they
were of the respective parties hereto; the title to any real estate vested by
deed or otherwise in H&G of Chicago FM shall not revert or be in any way
impaired by reason of the merger, but shall be vested in the Company; all
rights of creditors and all liens upon any property of either of the parties
hereto shall be preserved unimpaired, limited in lien to the property affected
by such lien at the effective time of the merger; all debts, liabilities and
duties of the respective parties hereto shall thenceforth attach to the Company
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it.
12. Book Entries. The merger contemplated hereby shall be treated
as a pooling of interests and as of the Effective Date entries shall be made
upon the books of the Company in accordance with the following:
(a) The assets and liabilities of H&G of Chicago FM shall
be recorded at the amounts at which they are carried on the books of
H&G of Chicago FM immediately prior to the Effective Date with
appropriate adjustment to reflect the retirement of the 1,000 shares
of Common Stock of the Company presently issued and outstanding.
(b) There shall be credited to the Retained Earnings
Account an amount equal to that carried on the Retained Earnings
Account of H&G of Chicago FM immediately prior to the Effective Date.
13. Service of Process on the Company. The Company agrees that it
may be served with process in the State of Hawaii in any proceeding for
enforcement of any obligation of H&G of Chicago FM as well as for the
enforcement of any obligation of the Company arising from the merger.
3
<PAGE> 74
14. Plan of Reorganization. This Agreement of Merger constitutes a
Plan of Reorganization to be carried out in the manner, on the terms and
subject to the conditions herein set forth.
15. Counterparts. This Agreement of Merger may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC
/s/ BY: /s/ Earl McDaniel
- ---------------------------- ------------------------------
Secretary Earl McDaniel,
Chairman of the Board
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
/s/ John D. Watson, Jr. BY: /s/ Scott K. Ginsburg
- --------------------------- ------------------------------
Assistant Secretary Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 75
CERTIFICATE OF THE ASSISTANT SECRETARY
OF
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
(a Delaware Corporation)
I, John D. Watson, Jr., the Assistant Secretary of Evergreen Media
Corporation of Chicago FM, hereby certify that the Plan and Agreement of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President and Assistant Secretary under the
corporate seal of said corporation, was duly approved and adopted by the
written consent of the holder of all of the outstanding stock entitled to vote
thereon.
WITNESS my hand and seal of said Evergreen Media Corporation of Chicago FM
this 27th day of June, 1988.
(SEAL) /s/ John D. Watson, Jr.
-----------------------------
Assistant Secretary
<PAGE> 76
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 77
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 78
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ EVE M. ELLISON
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 79
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
----------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER OF "H&G COMMUNICATIONS OF CHICAGO FM, INC." A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF HAWAII, MERGING WITH AND
INTO "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF "EVERGREEN
MEDIA CORPORATION OF CHICAGO FM" AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTIETH DATE OF JUNE, A.D. 1988, AT 9:15 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL
BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.
/s/ MICHAEL HARKINS
------------------------------------
[SEAL] Michael Harkins, Secretary of State
738182028
AUTHENTICATION: 1770746
DATE: 06/30/1988
<PAGE> 80
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
--------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER OF "H&G COMMUNICATIONS OF CHICAGO FM, INC." A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF HAWAII, MERGING WITH AND
INTO "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF "EVERGREEN
MEDIA CORPORATION OF CHICAGO FM" AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTIETH DAY OF JUNE, A.D. 1988, AT 9:15 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL
BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.
[SEAL] /s/ MICHAEL HARKINS
----------------------------------------
Michael Harkins, Secretary of State
738182028 AUTHENTICATION: 1770742
DATE: 06/30/1988
<PAGE> 81
PLAN AND AGREEMENT OF MERGER
AGREEMENT OF MERGER made this 27th day of June, 1988, between H&G
Communications of Chicago FM, Inc., a Hawaii corporation, hereinafter called
H&G of Chicago FM, and Evergreen Media Corporation of Chicago FM, a Delaware
corporation, hereinafter called the Company.
WHEREAS, H&G of Chicago FM has an authorized capital stock consisting of
1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares
have been duly issued and are now outstanding, and
WHEREAS, the Company has an authorized capital stock consisting of 1,000
shares of common stock, par value $1.00 per share, of which 1,000 shares have
been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of H&G of Chicago FM and the Company,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their mutual sole shareholder, H&G
Communications, Inc., that H&G of Chicago FM merge with the Company under and
pursuant to the provisions of the Business Corporation Act of the State of
Hawaii and of the General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. H&G of Chicago FM shall be and, subject to compliance with the
laws of the States of Hawaii and Delaware as set forth below, it hereby is
merged into the Company.
2. EFFECTIVE DATE. This Agreement of Merger shall become effective
immediately upon compliance with all requirements to effectiveness under the
laws of the States of Hawaii and Delaware, the time of such effectiveness being
hereinafter called the Effective Date.
3. SURVIVING CORPORATION. The Company shall survive the merger herein
contemplated and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of H&G of Chicago FM shall cease
forthwith upon the Effective Date.
4. AUTHORIZED CAPITAL. The authorized capital stock of the Company
following the Effective Date shall be 1,000 shares of Common Stock, par value
$1.00 per share, unless and until the same shall be changed in accordance with
the laws of the State of Delaware.
<PAGE> 82
5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the
Company as of the date hereof, which is set forth as Appendix A hereto, shall
be the Certificate of Incorporation of the Company following the Effective
Date until such time, if ever, when the same shall be amended in accordance
with its terms and with the laws of the State of Delaware.
6. BYLAWS. The Bylaws of the Company as they exist on the Effective Date
shall be the Bylaws of the Company following the Effective Date unless and
until the same shall be amended or repealed in accordance with the provisions
thereof.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of Directors
and the officers of the Company immediately after the effective time of the
merger shall be those persons who were the members of the Board of Directors
and the officers, respectively, of the Company immediately prior to the
effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. FURTHER ASSURANCE OF TITLE. If at any time the Company shall consider
or be advised that any acknowledgments or assurances in law or other similar
actions are necessary or desirable in order to acknowledge or confirm in and to
the Company any right, title or interest of H&G of Chicago FM held immediately
prior to the Effective Date, H&G of Chicago FM and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title or interest in the Company as shall be necessary to
carry out the purposes of this Agreement of Merger, and the Company and the
proper officers and directors thereof are fully authorized to take any and all
such action in the name of H&G of Chicago FM or otherwise.
9. RETIREMENT OF ORGANIZATION STOCK. Forthwith upon the Effective Date,
each of the 1,000 shares of the Common Stock of the Company presently issued
and outstanding shall be retired, and no shares of the Common Stock or other
securities of the Company shall be issued in respect thereof.
10. CONVERSION OF OUTSTANDING STOCK. Forthwith upon the Effective Date,
each of the issued and outstanding shares of Common Stock of H&G of Chicago FM
and all rights in respect thereof shall be converted into one fully paid and
nonassessable share of Common Stock of the Company, and each
2
<PAGE> 83
certificate nominally representing shares of Common Stock of H&G of Chicago FM
shall for all purposes be deemed to evidence the ownership of a like number of
shares of Common Stock of the Company.
11. RIGHTS AND LIABILITIES OF THE COMPANY. At and after the effective
time of the merger, the Company shall succeed to and possess, without further
act or deed, all of the estate, rights, privileges, powers and franchises, both
public and private, and all of the property, real, personal and mixed, of each
of the parties hereto; all debts due to H&G of Chicago FM or whatever account
shall be vested in the Company; all claims, demands, property, rights,
privileges, powers and franchises and every other interest of either of the
parties hereto shall be as effectively the property of the Company as they were
of the respective parties hereto; the title to any real estate vested by deed
or otherwise in H&G of Chicago FM shall not revert or be in any way impaired by
reason of the merger, but shall be vested in the Company; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be preserved unimpaired, limited in lien to the property affected by such lien
at the effective time of the merger; all debts, liabilities and duties of the
respective parties hereto shall thenceforth attach to the Company and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
12. BOOK ENTRIES. The merger contemplated hereby shall be treated as a
pooling of interests and as of the Effective Date entries shall be made upon
the books of the Company in accordance with the following:
(a) The assets and liabilities of H&G of Chicago FM shall be recorded
at the amounts at which they are carried on the books of H&G of Chicago FM
immediately prior to the Effective Date with appropriate adjustment to
reflect the retirement of the 1,000 shares of Common Stock of the Company
presently issued and outstanding.
(b) There shall be credited to the Retained Earnings Account an
amount equal to that carried on the Retained Earnings Account of H&G of
Chicago FM immediately prior to the Effective Date.
13. SERVICE OF PROCESS ON THE COMPANY. The Company agrees that it may be
served with process in the State of Hawaii in any proceeding for enforcement of
any obligation of H&G of Chicago FM as well as for the enforcement of any
obligation of the Company arising from the merger.
3
<PAGE> 84
14. PLAN OF REORGANIZATION. This Agreement of Merger constitutes a Plan
of Reorganization to be carried out in the manner, on the terms and subject to
the conditions herein set forth.
15. COUNTERPARTS. This Agreement of Merger may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC.
/s/
- -------------------------------- BY: /s/ Earl McDaniel
Secretary -------------------------------
Earl McDaniel
Chairman of the Board
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
/s/ John D. Watson, Jr.
- -------------------------------- BY: /s/ Scott K. Ginsburg
Assistant Secretary -------------------------------
Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 85
CERTIFICATE OF THE ASSISTANT SECRETARY
OF
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
(a Delaware Corporation)
I, John D. Watson, Jr., the Assistant Secretary of Evergreen Media
Corporation of Chicago FM, hereby certify that the Plan and Agreement of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President and Assistant Secretary under the
corporate seal of said corporation, was duly approved and adopted by the
written consent of the holder of all of the outstanding stock entitled to vote
thereon.
WITNESS my hand and seal of said Evergreen Media Corporation of Chicago FM
this 27th day of June, 1988.
(SEAL) /s/ John D. Watson, Jr.
-----------------------------
Assistant Secretary
<PAGE> 86
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 87
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or re-
peal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 88
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 89
State of Delaware
(Picture)
Office of Security of State
[ILLEGIBLE COPY]
[SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
Authentication: 1770746
Date: 06/30/1988
<PAGE> 90
PLAN AND AGREEMENT OF MERGER
AGREEMENT OF MERGER made this 27th day of June, 1988, between H&G
Communications of Chicago FM, Inc., a Hawaii corporation, hereinafter called
H&G of Chicago FM, and Evergreen Media Corporation of Chicago FM, a Delaware
corporation, hereinafter called the Company.
WHEREAS, H&G of Chicago FM has an authorized capital stock consisting
of 1,000 shares of common stock, par value $1.00 per share, of which 1,000
shares have been duly issued and are now outstanding, and
WHEREAS, the Company has an authorized capital stock consisting of
1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares
have been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of H&G of Chicago FM and the Company,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their mutual sole shareholder, H&G
Communications, Inc., that H&G of Chicago FM merge with the Company under and
pursuant to the provisions of the Business Corporation Act of the State of
Hawaii and of the General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. Merger. H&G of Chicago FM shall be and, subject to compliance
with the laws of the States of Hawaii and Delaware as set forth below, it
hereby is merged into the Company.
2. Effective Date. This Agreement of Merger shall become
effective immediately upon compliance with all requirements to effectiveness
under the laws of the States of Hawaii and Delaware, the time of such
effectiveness being hereinafter called the Effective Date.
3. Surviving Corporation. The Company shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate corporate existence of H&G of Chicago FM shall
cease forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of the
Company following the Effective Date shall be 1,000 shares of Common Stock, par
value $1.00 per share,
<PAGE> 91
unless and until the same shall be changed in accordance with the laws of the
State of Delaware.
5. Certificate of Incorporation. The Certificate of Incorporation
of the Company as of the date hereof, which is set forth as Appendix A hereto,
shall be the Certificate of Incorporation of the Company following the
Effective Date until such time, if ever, when the same shall be amended in
accordance with its terms and with the laws of the State of Delaware.
6. Bylaws. The Bylaws of the Company as they exist on the
Effective Date shall be the Bylaws of the Company following the Effective Date
unless and until the same shall be amended or repealed in accordance with the
provisions thereof.
7. Board of Directors and Officers. The members of the Board of
Directors and the officers of the Company immediately after the effective time
of the merger shall be those persons who were the members of the Board of
Directors and the officers, respectively, of the Company immediately prior to
the effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. Further Assurance of Title. If at any time the Company shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in and to the Company any right, title or interest of H&G of Chicago FM held
immediately prior to the Effective Date, H&G of Chicago FM and its proper
officers and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all things necessary or proper to
acknowledge or confirm such right, title or interest in the Company as shall be
necessary to carry out the purposes of this Agreement of Merger, and the
Company and the proper officers and directors thereof are fully authorized
to take any and all such action in the name of H&G of Chicago FM or otherwise.
9. Retirement of Organization Stock. Forthwith upon the Effective
Date, each of the 1,000 shares of the Common Stock of the Company presently
issued and outstanding shall be retired, and no shares of the Common Stock or
other securities of the Company shall be issued in respect thereof.
10. Conversion of Outstanding Stock. Forthwith upon the Effective
Date, each of the issued and outstanding shares of Common Stock of H&G of
Chicago FM and all rights in respect thereof shall be converted into one fully
paid and nonassessable share of Common Stock of the Company, and each
2
<PAGE> 92
certificate nominally representing shares of Common Stock of H&G of Chicago FM
shall for all purposes be deemed to evidence the ownership of a like number of
shares of Common Stock of the Company.
11. Rights and Liabilities of the Company. At and after the
effective time of the merger, the Company shall succeed to and possess, without
further act or deed, all of the estate, rights, privileges, powers and
franchises, both public and private, and all of the property, real, personal and
mixed, of each of the parties hereto; all debts due to H&G of Chicago FM or
whatever account shall be vested in the Company; all claims, demands, property,
rights, privileges, powers and franchises and every other interest of either of
the parties hereto shall be as effectively the property of the Company as they
were of the respective parties hereto; the title to any real estate vested by
deed or otherwise in H&G of Chicago FM shall not revert or be in any way
impaired by reason of the merger, but shall be vested in the Company; all
rights of creditors and all liens upon any property of either of the parties
hereto shall be preserved unimpaired, limited in lien to the property affected
by such lien at the effective time of the merger; all debts, liabilities and
duties of the respective parties hereto shall thenceforth attach to the Company
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it.
12. Book Entries. The merger contemplated hereby shall be treated
as a pooling of interests and as of the Effective Date entries shall be made
upon the books of the Company in accordance with the following:
(a) The assets and liabilities of H&G of Chicago FM shall be
recorded at the amounts at which they are carried on the books of H&G of
Chicago FM immediately prior to the Effective Date with appropriate adjustment
to reflect the retirement of the 1,000 shares of Common Stock of the Company
presently issued and outstanding.
(b) There shall be credited to the Retained Earnings Account
an amount equal to that carried on the Retained Earnings Account of H&G of
Chicago FM immediately prior to the Effective Date.
13. Service of Process on the Company. The Company agrees that it
may be served with process in the State of Hawaii in any proceeding for
enforcement of any obligation of H&G of Chicago FM as well as for the
enforcement of any obligation of the Company arising from the merger.
3
<PAGE> 93
14. Plan Of Reorganization. This Agreement of Merger constitutes a
Plan of Reorganization to be carried out in the manner, on the terms and subject
to the conditions herein set forth.
15. Counterparts. This Agreement of Merger may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC.
/s/ BY: /s/ Earl McDaniel
- ----------------------- -------------------------
Secretary Earl McDaniel,
Chairman of the Board
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
/s/ John D. Watson, Jr. BY: /s/ Scott K. Ginsburg
- ----------------------- -------------------------
Assistant Secretary Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 94
CERTIFICATE OF THE ASSISTANT SECRETARY
OF
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
(a Delaware Corporation)
I, John D. Watson, Jr., the Assistant Secretary of Evergreen Media
Corporation of Chicago FM, hereby certify that the Plan and Agreement of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President and Assistant Secretary under the
corporate seal of said corporation, was duly approved and adopted by the
written consent of the holder of all of the outstanding stock entitled to vote
thereon.
WITNESS my hand and seal of said Evergreen Media Corporation of Chicago FM
this 27th day of June, 1988.
(SEAL) /s/ John D. Watson, Jr.
-----------------------------
Assistant Secretary
<PAGE> 95
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000)shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 96
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or re-
peal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 97
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ Eve M. Ellison
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 98
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
--------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER OF "H&G COMMUNICATIONS OF CHICAGO FM, INC." A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF HAWAII, MERGING WITH AND
INTO "EVERGREEN MEDIA CORPORATION OF CHICAGO FM", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF "EVERGREEN
MEDIA CORPORATION OF CHICAGO FM" AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTIETH DAY OF JUNE, A.D. 1988, AT 9:15 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL
BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.
[SEAL] /s/ MICHAEL HARKINS
----------------------------------------
Michael Harkins, Secretary of State
888182025 AUTHENTICATION: 1770354
DATE: 06/30/1988
<PAGE> 99
PLAN AND AGREEMENT OF MERGER
AGREEMENT OF MERGER made this 27th day of June, 1988, between H&G
Communications of Chicago FM, Inc., a Hawaii corporation, hereinafter called
H&G of Chicago FM, and Evergreen Media Corporation of Chicago FM, a Delaware
corporation, hereinafter called the Company.
WHEREAS, H&G of Chicago FM has an authorized capital stock consisting of
1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares
have been duly issued and are now outstanding, and
WHEREAS, the Company has an authorized capital stock consisting of 1,000
shares of common stock, par value $1.00 per share, of which 1,000 shares have
been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of H&G of Chicago FM and the Company,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their mutual sole shareholder, H&G
Communications, Inc., that H&G of Chicago FM merge with the Company under and
pursuant to the provisions of the Business Corporation Act of the State of
Hawaii and of the General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. Merger. H&G of Chicago FM shall be and, subject to compliance with the
laws of the States of Hawaii and Delaware as set forth below, it hereby is
merged into the Company.
2. Effective Date. This Agreement of Merger shall become effective
immediately upon compliance with all requirements to effectiveness under the
laws of the States of Hawaii and Delaware, the time of such effectiveness being
hereinafter called the Effective Date.
3. Surviving Corporation. The Company shall survive the merger herein
contemplated and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of H&G of Chicago FM shall cease
forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of the Company
following the Effective Date shall be 1,000 shares of Common Stock, par value
$1.00 per share,
<PAGE> 100
unless and until the same shall be changed in accordance with the laws of the
State of Delaware.
5. Certificate of Incorporation. The Certificate of Incorporation of the
Company as of the date hereof, which is set forth as Appendix A hereto, shall
be the Certificate of Incorporation of the Company following the Effective
Date until such time, if ever, when the same shall be amended in accordance
with its terms and with the laws of the State of Delaware.
6. Bylaws. The Bylaws of the Company as they exist on the Effective Date
shall be the Bylaws of the Company following the Effective Date unless and
until the same shall be amended or repealed in accordance with the provisions
thereof.
7. Board of Directors and Officers. The members of the Board of Directors
and the officers of the Company immediately after the effective time of the
merger shall be those persons who were the members of the Board of Directors
and the officers, respectively, of the Company immediately prior to the
effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. Further Assurance of Title. If at any time the Company shall consider
or be advised that any acknowledgments or assurances in law or other similar
actions are necessary or desirable in order to acknowledge or confirm in and to
the Company any right, title or interest of H&G of Chicago FM held immediately
prior to the Effective Date, H&G of Chicago FM and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title or interest in the Company as shall be necessary to
carry out the purposes of this Agreement of Merger, and the Company and the
proper officers and directors thereof are fully authorized to take any and all
such action in the name of H&G of Chicago FM or otherwise.
9. Retirement of Organization Stock. Forthwith upon the Effective Date,
each of the 1,000 shares of the Common Stock of the Company presently issued
and outstanding shall be retired, and no shares of the Common Stock or other
securities of the Company shall be issued in respect thereof.
10. Conversion of Outstanding Stock. Forthwith upon the Effective Date,
each of the issued and outstanding shares of Common Stock of H&G of Chicago FM
and all rights in respect thereof shall be converted into one fully paid and
nonassessable share of Common Stock of the Company, and each
2
<PAGE> 101
certificate nominally representing shares of Common Stock of H&G of Chicago FM
shall for all purposes be deemed to evidence the ownership of a like number of
shares of Common Stock of the Company.
11. Rights and Liabilities of the Company. At and after the effective
time of the merger, the Company shall succeed to and possess, without further
act or deed, all of the estate, rights, privileges, powers and franchises, both
public and private, and all of the property, real, personal and mixed, of each
of the parties hereto; all debts due to H&G of Chicago FM or whatever account
shall be vested in the Company; all claims, demands, property, rights,
privileges, powers and franchises and every other interest of either of the
parties hereto shall be as effectively the property of the Company as they were
of the respective parties hereto; the title to any real estate vested by deed
or otherwise in H&G of Chicago FM shall not revert or be in any way impaired by
reason of the merger, but shall be vested in the Company; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be preserved unimpaired, limited in lien to the property affected by such lien
at the effective time of the merger; all debts, liabilities and duties of the
respective parties hereto shall thenceforth attach to the Company and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
12. Book Entries. The merger contemplated hereby shall be treated as a
pooling of interests and as of the Effective Date entries shall be made upon
the books of the Company in accordance with the following:
(a) The assets and liabilities of H&G of Chicago FM shall be recorded
at the amounts at which they are carried on the books of H&G of Chicago FM
immediately prior to the Effective Date with appropriate adjustment to
reflect the retirement of the 1,000 shares of Common Stock of the Company
presently issued and outstanding.
(b) There shall be credited to the Retained Earnings Account an
amount equal to that carried on the Retained Earnings Account of H&G of
Chicago FM immediately prior to the Effective Date.
13. Service of Process on the Company. The Company agrees that it may be
served with process in the State of Hawaii in any proceeding for enforcement of
any obligation of H&G of Chicago FM as well as for the enforcement of any
obligation of the Company arising from the merger.
3
<PAGE> 102
14. Plan of Reorganization. This Agreement of Merger constitutes a Plan
of Reorganization to be carried out in the manner, on the terms and subject to
the conditions herein set forth.
15. Counterparts. This Agreement of Merger may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an officer thereunto duly authorized and attested by
the Secretary or Assistant Secretary and its corporate seal to be hereunto
affixed.
ATTEST: H&G COMMUNICATIONS OF
CHICAGO FM, INC.
/s/
- -------------------------------- BY: /s/ Earl McDaniel
Secretary -------------------------------
Earl McDaniel,
Chairman of the Board
Corporate Seal
ATTEST: EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
/s/ John D. Watson, Jr.
- -------------------------------- BY: /s/ Scott K. Ginsburg
Assistant Secretary -------------------------------
Scott K. Ginsburg,
President
Corporate Seal
4
<PAGE> 103
CERTIFICATE OF THE ASSISTANT SECRETARY
OF
EVERGREEN MEDIA CORPORATION
OF CHICAGO FM
(a Delaware Corporation)
I, John D. Watson, Jr., the Assistant Secretary of Evergreen Media
Corporation of Chicago FM, hereby certify that the Plan and Agreement of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President and Assistant Secretary under the
corporate seal of said corporation, was duly approved and adopted by the
written consent of the holder of all of the outstanding stock entitled to vote
thereon.
WITNESS my hand and seal of said Evergreen Media Corporation of Chicago FM
this 27th day of June, 1988.
(SEAL) /s/ John D. Watson, Jr.
-----------------------------
Assistant Secretary
<PAGE> 104
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000)shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 105
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or re-
peal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 106
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ EVE M. ELLISON
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 107
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders for common stock on
the basis on one vote per share, on all matters required or permitted to be
approved by vote of the corporations's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 108
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or re-
peal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 109
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1998.
/s/Eve M. Ellison
-----------------
Eve M. Ellison
Incorporator
<PAGE> 110
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF EVERGREEN MEDIA CORPORATION OF CHICAGO FM FILED IN THIS OFFICE
ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1758947
DATE: 06/23/1988
<PAGE> 111
STATE OF DELAWARE
[PICTURE]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF EVERGREEN MEDIA CORPORATION OF CHICAGO FM FILED IN THIS OFFICE
ON THE TWENTY-SECOND DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1758946
DATE: 06/23/1988
<PAGE> 112
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
FIRST. The name of this corporation is:
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
SECOND. The address of its registered office in the State of Delaware is
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. The nature of business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The corporation shall have authority to issue one thousand
(1,000) shares of common stock, with a par value of $1.00 per share. All voting
rights and powers shall be vested exclusively in the holders of common stock on
the basis of one vote per share, on all matters required or permitted to be
approved by vote of the corporation's stockholders.
FIFTH. The name and mailing address of the incorporator is:
Eve M. Ellison
LATHAM & WATKINS
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
<PAGE> 113
SIXTH. The name of the person who is to serve as the initial director
of the corporation until his successor is elected and qualified, is:
Scott K. Ginsburg
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or re-
peal the by-laws of the corporation.
EIGHTH. Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
NINTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 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.
TENTH. 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 114
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of June, 1988.
/s/ EVE M. ELLISON
-----------------------
Eve M. Ellison
Incorporator
<PAGE> 1
EXHIBIT 3.6
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
<PAGE> 2
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 2
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 4
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 4
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 5
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 5
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 7
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 8
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 9
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 9
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 10
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 10
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 17
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 17
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 17
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 17
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 17
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 8. Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 19
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2. Signatures of Certificates . . . . . . . . . . . . . . . . . . 21
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 22
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2. Payment of Dividends; Directors' Duties . . . . . . . . . . . . 25
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 25
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 26
</TABLE>
ii
<PAGE> 4
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF CHICAGO FM
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
<PAGE> 5
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or 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 the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote thereat.
Section 4. 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 the
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statutes, or the Certificate of Incorporation, or these By-Laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the 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
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entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place
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shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) director nor more than five (5) directors. The
first Board shall consist of one (1) director. The directors need not be
stockholders. The directors shall be elected at the annual
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meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified; provided, however, that unless otherwise restricted by the
Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. The directors so
chosen shall hold office until the next annual election of directors and until
their successors are duly elected and shall qualify, unless sooner displaced.
If there are no directors in office, then an election of directors may be held
in the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding
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having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 3. The property and business of the corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of two
directors unless the Board consists of only one director; in which case special
meetings
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shall be called by the President or Secretary in like manner or on like notice
on the written request of the sole director.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
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Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
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 such committee to
consist of one 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 a member of a committee, 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 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
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the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the By-Laws of the corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the 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
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allowed like compensation for attending committee meetings.
INDEMNIFICATION
Section 13.(a) The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to
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believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed 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 a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation shall be successful on
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the merits or otherwise in defense of any action, suit, or proceeding referred
to in paragraphs (a) and (b), or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in paragraphs (a) and (b). Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were no parties to such action, suit or proceeding, or (2) if such
a quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders.
(e) Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Section 13. Such expenses
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incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 13 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholder or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Section 13.
(h) For the purposes of this Section 13, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
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consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Section with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include service
as a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the
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corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 13 shall, unless otherwise provided when
authorized or ratified, 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.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board of
Directors and shall include a President, a Secretary, and a Treasurer. The
corporation may also have at the discretion of the Board of Directors such other
officers as are desired, including a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
3 hereof. In the event there are two or more Vice Presidents, then one or more
may be designated as Executive Vice President, Senior Vice President, or other
similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these By-Laws otherwise provide.
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Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
CHAIRMAN OF THE BOARD
Section 6. The Chairman of the Board, if such an officer be elected, 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 these By-Laws. If there is no
President, the Chairman of the Board shall in addition be the Chief Executive
Officer of the corporation and shall have the powers and duties prescribed in
Section 7 of this Article IV.
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PRESIDENT
Section 7. 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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
VICE PRESIDENTS
Section 8. 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 duties as from time to time may be prescribed for them,
respectively, by the Board of Directors.
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SECRETARY AND ASSISTANT SECRETARY
Section 9. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws. 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
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.
Section 10. 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, the Assistant Secretary designated by the Board
of Directors, shall, in the absence or disability of the Secretary, 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.
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TREASURER AND ASSISTANT TREASURER
Section 11. The Treasurer shall serve as Chief Financial Officer of the
corporation. He 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 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, 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.
Section 12. 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
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determination, the Assistant Treasurer designated by the Board of Directors,
shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the corporation shall be entitled to
have a certificate signed by, or in the name of the corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the corporation.
Section 2. Any or all of the signatures on the 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.
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Section 3. If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 4. 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, 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
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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, stolen 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, stolen or
destroyed.
TRANSFERS OF STOCK
Section 5. 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, assignation 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.
FIXING RECORD DATE
Section 6. In order that the corporation may determine 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 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
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other lawful action, the Board of Directors may fix a record date which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. 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.
REGISTERED STOCKHOLDERS
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the Certificate 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 Certificate 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 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 interests of the
corporation, and the directors may abolish any such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers 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 corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
NOTICES
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or
25
<PAGE> 29
stockholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, addressed to such director or stockholder, at
his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to directors may
also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
ANNUAL STATEMENT
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new By-Laws
may be adopted by the stockholders or by the Board of Directors, when such power
is conferred upon the Board of Directors by the Certificate of Incorporation,
at any regular meeting of the stockholders or
26
<PAGE> 30
of the Board of Directors or at any special meeting of the stockholders or of
the Board of Directors if notice of such alteration, amendment, repeal or
adoption of new By-Laws be contained in the notice of such special meeting. If
the power to adopt, amend or repeal By-Laws is conferred upon the Board of
Directors by the Certificate of Incorporation it shall not divest or limit the
power of the stockholders to adopt, amend or repeal By-Laws.
27
<PAGE> 31
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
Evergreen Media Corporation of Chicago FM, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising Twenty-Six (26) pages,
constitute the By-Laws of said corporation as duly approved and adopted by the
Board of Directors of said corporation as of June 23, 1988.
IN WITNESS WHEREOF, I have here unto subscribed my name this 27th day of
June, 1988.
/s/ JOHN D. WATSON, JR.
---------------------------------
Assistant Secretary
<PAGE> 1
EXHIBIT 3.7
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WLUP-FM LICENSE CORP.", CHANGING ITS NAME FROM "WLUP-FM LICENSE CORP." TO
"KZPS/KDGE LICENSE CORP.", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER,
A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8712924
[SEAL] DATE: 10-21-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WLUP-FM LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WLUP-FM License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"KZPS/KDGE LICENSE CORP."
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
WLUP-FM LICENSE CORP.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WLUP-FM LICENSE CORP.", FILED IN THIS OFFICE ON THE NINTH DAY
OF OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8705619
[SEAL] DATE: 10-16-97
<PAGE> 4
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 10/09/1992
732283029 - 2312324
CERTIFICATE OF INCORPORATION
OF
WLUP-FM LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WLUP-FM LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 5
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or is stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall to provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 6
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 9th day of October, 1992.
/s/ SYLVIA L. ADAMS
-------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 7
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "WLUP-FM LICENSE CORP." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE
OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR
AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE SIXTH DAY OF OCTOBER, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8687311
DATE: 10-06-97
<PAGE> 8
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WLUP-FM LICENSE CORP." FILED IN THIS OFFICE ON THE NINTH DAY
OF OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ MICHAEL RATCHFORD
--------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3652034
[SEAL] DATE: 11/06/1992
<PAGE> 9
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 10/09/1992
732283029-2312324
CERTIFICATE OF INCORPORATION
OF
WLUP-FM LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WLUP-FM LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 10
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall to provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 11
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 9th day of October, 1992.
/s/ SYLVIA L. ADAMS
-------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 12
STATE OF DELAWARE
[STATE LOGO]
OFFICE OF SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WLUP-FM LICENSE CORP." FILED IN THIS OFFICE ON THE NINTH DAY
OF OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
--------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3622075
[SEAL] DATE: 10/13/1992
<PAGE> 13
CERTIFICATE OF INCORPORATION
OF
WLUP-FM LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WLUP-FM LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 14
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall to provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 15
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 9th day of October, 1992.
/s/ SYLVIA L. ADAMS
-------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.8
BY-LAWS
OF
WLUP-FM LICENSE CORP.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors' Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
3
<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
4
<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
5
<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
7
<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
8
<PAGE> 12
resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
9
<PAGE> 13
business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
10
<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
11
<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
12
<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
13
<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
15
<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WLUP-FM License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
October 15, 1992.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 15th day of
October, 1992.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.9
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-----------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "CHANCELLOR MEDIA CORPORATION OF THE BAY AREA", CHANGING ITS NAME
FROM "CHANCELLOR MEDIA CORPORATION OF THE BAY AREA" TO "CHANCELLOR MEDIA
CORPORATION OF CALIFORNIA", FILED IN THIS OFFICE ON THE THIRD DAY OF JUNE, A.D.
1998, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 9116335
DATE: 06-03-98
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA CORPORATION OF THE BAY AREA
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Chancellor Media Corporation of the Bay Area (the "Corporation"),
a Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF CALIFORNIA"
2. The Directors and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Andrea Hulcy, its
Vice President, on this 3rd day of June, 1998.
CHANCELLOR MEDIA CORPORATION
OF THE BAY AREA,
a Delaware Corporation
By: /s/ ANDREA HULCY
------------------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY "CHANCELLOR MEDIA CORPORATION OF THE BAY AREA" IS DULY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND
HAS A LEGAL CORPORATE EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS
OF THE NINETEENTH DAY OF DECEMBER, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID
TO DATE.
/s/ EDWARD J. FREEL
---------------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8825178
DATE: 12-19-97
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
RENEWAL OF "CHANCELLOR MEDIA CORPORATION OF THE BAY AREA" FILED IN THIS OFFICE
ON THE EIGHTEENTH DAY OF DECEMBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
---------------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8825065
DATE: 12-19-97
<PAGE> 5
CERTIFICATE
FOR RENEWAL AND REVIVAL OF CERTIFICATE OF INCORPORATION
Chancellor Media Corporation of the Bay Area, a corporation organized under the
laws of Delaware, the Certificate of Incorporation of which was filed in the
office of the Secretary of State on the 9th day of November, 1994 and
thereafter forfeited pursuant to section 136(c) of the General Corporation
Law of Delaware, now desiring to procure a revival of its Certificate of
Incorporation, hereby certified as follows:
1. The name of the corporation is Chancellor Media Corporation of the Bay
Area.
2. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle and the name of its registered agent as such address is THE CORPORATION
TRUST COMPANY.
3. The date when revival of the Certificate of Incorporation of this
corporation is to commence is the 4TH day of November 1997, the same being
prior to the date the forfeiture of the Certificate of Incorporation. Revival
of the Certificate of Incorporation is to be perpetual.
4. This corporation was duly organized under the laws of Delaware and
carried on the business authorized by its Certificate of Incorporation until
the 5th day of November, 1997, at which time its Certificate of Incorporation
became forfeited pursuant to section 136(C) of the General Corporation Law of
Delaware and this Certificate for Renewal and Revival is filed by
<PAGE> 6
authority of the duly elected directors of the corporation in accordance with
the laws of Delaware.
IN WITNESS WHEREOF, said Chancellor Media Corporation of the Bay Area in
compliance with Section 312 of the General Corporation Law of Delaware has
caused this Certificate to be signed by Omar Choucair, its last and acting Vice
President, this 18th day of December, 1997.
CHANCELLOR MEDIA CORPORATION OF THE BAY AREA
BY: /s/ OMAR CHOUCAIR
----------------------------------------
Omar Choucair
Last and Acting Vice President
<PAGE> 7
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVERGREEN MEDIA CORPORATION OF THE BAY AREA", CHANGING ITS NAME
FROM "EVERGREEN MEDIA CORPORATION OF THE BAY AREA" TO "CHANCELLOR MEDIA
CORPORATION OF THE BAY AREA", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF
OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
---------------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8710061
DATE: 10-20-97
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE BAY AREA
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Evergreen Media Corporation of the Bay Area (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF THE BAY AREA"
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF THE BAY AREA,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
--------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 9
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES:
"EVERGREEN MEDIA CORPORATION OF THE BAY AREA", A FLORIDA CORPORATION,
WITH AND INTO "EVERGREEN MEDIA CORPORATION OF THE BAY AREA" UNDER THE NAME
OF "EVERGREEN MEDIA CORPORATION OF THE BAY AREA", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTY-FIRST DAY OF MARCH, A.D. 1995, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 7458499
DATE: 03-31-95
<PAGE> 10
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, A FLORIDA CORPORATION
INTO
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, A DELAWARE CORPORATION
* * * * * *
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a corporation organized and
existing under the laws of Florida (the "Parent", sometimes also referred to
herein as the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Parent was incorporated on the 5th day of May, 1983,
pursuant to the General Corporation Laws of the State of Florida, the
provisions of which permit the merger of a corporation of another state and a
corporation organized and existing under the laws of said state.
SECOND: That the Parent owns all of the outstanding shares of stock of
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a corporation incorporated on the
9th day of November, 1994, pursuant to the General Corporation Laws of the
State of Delaware (the "Subsidiary", sometimes also referred to herein as
"EBA-DE").
THIRD: That the shareholders and directors of the Parent, by the following
resolutions of its shareholders and Board of Directors, duly adopted via
written consent on the 30th day of March, 1995, have decided to merge the
Parent into said Subsidiary:
"RESOLVED, THAT THE CORPORATION SHALL MERGE INTO ITS SUBSIDIARY,
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, A DELAWARE CORPORATION
("EBA-DE").
FURTHER RESOLVED, THAT THE TERMS AND CONDITIONS OF SAID MERGER (THE
"MERGER") ARE AS FOLLOWS:
ON THE EFFECTIVE DATE OF THE MERGER, THE CORPORATION SHALL BE MERGED
WITH AND INTO EBA-DE PURSUANT TO THE GENERAL CORPORATION LAWS OF THE
STATES OF DELAWARE AND FLORIDA. UPON CONSUMMATION OF THE MERGER,
EBA-DE SHALL BE THE SURVIVING CORPORATION AND THE CORPORATION WILL
CEASE TO EXIST.
<PAGE> 11
THE EFFECTIVE DATE OF THE MERGER SHALL BE THE DATE UPON WHICH A
CERTIFICATE OF OWNERSHIP AND MERGER IS FILED WITH THE SECRETARY OF
THE STATE OF DELAWARE.
THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE SURVIVING
CORPORATION.
THE DIRECTORS AND OFFICERS OF EBA-DE, IMMEDIATELY FOLLOWING THE
EFFECTIVE DATE OF THE MERGER, SHALL BE THOSE INDIVIDUALS SERVING IN
SUCH RESPECTIVE CAPACITIES FOR THE CORPORATION IMMEDIATELY PRIOR TO
THE MERGER.
THE CERTIFICATE OF INCORPORATION AND BYLAWS OF EBA-DE, AS IN EFFECT
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE MERGER, SHALL,
IMMEDIATELY FOLLOWING THE MERGER, BE THE CERTIFICATE OF INCORPORATION
AND BYLAWS OF THE SURVIVING CORPORATION.
EACH SHARE OF COMMON STOCK, $1.00 PAR VALUE, OF EBA-DE, OUTSTANDING
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE MERGER, SHALL, BY
VIRTUE OF THE MERGER, BE CANCELLED. EACH SHARE OF COMMON STOCK, $1.00
PAR VALUE, OF THE CORPORATION, OUTSTANDING IMMEDIATELY PRIOR TO THE
EFFECTIVE DATE OF THE MERGER, SHALL, BY VIRTUE OF THE MERGER AND
WITHOUT ANY ACTION ON THE PART OF THE HOLDER THEREOF, BE CONVERTED
INTO ONE SHARE OF COMMON STOCK, $1.00 PAR VALUE, OF EBA-DE.
AT AND AFTER THE EFFECTIVE DATE, EBA-DE SHALL THEREUPON AND THEREAFTER
POSSESS ALL THE RIGHTS, PRIVILEGES, POWERS AND FRANCHISES OF THE
CORPORATION AND SHALL BECOME SUBJECT TO THE RESTRICTIONS, DISABILITIES
AND DUTIES OF THE CORPORATION; ALL AND SINGULAR, THE RIGHTS,
PRIVILEGES, POWERS AND FRANCHISES OF THE CORPORATION, AND ALL
PROPERTY, REAL, PERSONAL AND MIXED, AND ALL DEBTS DUE TO THE
CORPORATION, ON WHATEVER ACCOUNT, AND ALL OTHER THINGS IN ACTION OR
BELONGING TO THE CORPORATION, SHALL BE VESTED IN EBA-DE; ALL PROPERTY
RIGHTS, PRIVILEGES, POWERS AND FRANCHISES AND ALL AND EVERY OTHER
INTEREST SHALL BE THEREAFTER THE PROPERTY OF EBA-DE AS THEY WERE OF
THE CORPORATION; THE TITLE TO ANY REAL ESTATE VESTED BY DEED OR
OTHERWISE OR ANY OTHER INTEREST IN REAL ESTATE VESTED BY ANY
INSTRUMENT OR OTHERWISE IN THE CORPORATION, SHALL NOT REVERT OR BECOME
IN ANY WAY IMPAIRED BY REASON OF THE MERGER; ALL RIGHTS OF CREDITORS
AND ALL LIENS UPON ANY PROPERTY OF THE CORPORATION SHALL BE PRESERVED
2
<PAGE> 12
UNIMPAIRED AND ALL DEBTS, LIABILITIES AND DUTIES OF THE CORPORATION
SHALL THENCEFORTH ATTACH TO EBA-DE AND SHALL BE ENFORCEABLE AGAINST
EBA-DE TO THE SAME EXTENT AS IF SAID DEBTS, LIABILITIES AND DUTIES HAD
BEEN INCURRED OR CONTRACTED BY IT.
FURTHER RESOLVED, THAT THE OFFICERS OF THE CORPORATION BE AND EACH
HEREBY IS DIRECTED AND AUTHORIZED (i) TO MAKE AND EXECUTE A
CERTIFICATE OF OWNERSHIP AND MERGER AND ARTICLES OF MERGER, SETTING
FORTH THE SPECIFIC LANGUAGE OR THE INTENT OF THESE RESOLUTIONS, (ii)
TO CAUSE THE SAME TO BE FILED WITH THE SECRETARIES OF STATE OF
DELAWARE AND FLORIDA, AND (iii) TO DO ALL ACTS AND THINGS WHATSOEVER,
WHETHER WITHIN OR WITHOUT THE STATES OF DELAWARE AND FLORIDA, WHICH
MAY BE NECESSARY OR PROPER TO EFFECT THE MERGER."
FOURTH: That the proposed merger has been adopted, approved,
certified, executed and acknowledged by the Parent in accordance with the laws
of the State of Florida, under which the Parent was organized.
IN WITNESS WHEREOF, EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a Florida
corporation, has caused this Certificate to be signed by Scott K. Ginsburg, its
president, this 30th day of March, 1995.
EVERGREEN MEDIA CORPORATION OF THE
BAY AREA, a Florida corporation
By: /s/ SCOTT K. GINSBURG
-------------------------------
Scott K. Ginsburg, President
3
<PAGE> 13
[SEAL OF STATE OF FLORIDA]
[FLORIDA DEPARTMENT OF STATE LETTERHEAD]
March 31, 1995
CT Corporation System
1311 Executive Center Drive
Suite 200
Tallahassee, FL 32301
The Articles of Merger were filed on March 31, 1995, for EVERGREEN MEDIA
CORPORATION OF THE BAY AREA, the surviving Delaware corporation not authorized
to transact business in Florida.
Should you have any further questions regarding this matter, please feel free
to call (904) 487-6050, the Amendment Filing Section.
Annette Hogan
Corporate Specialist
Division of Corporations Letter Number: 195A00014705
<PAGE> 14
FILED
95 MAR 31 PM 12:07
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES OF MERGER
OF
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a Florida corporation
INTO
EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a Delaware corporation
Pursuant to Section 607.1104 of the Florida Business Corporation Act,
the undersigned corporations adopt the following Articles of Merger:
FIRST: EVERGREEN MEDIA CORPORATION OF THE BAY AREA (the "Parent") is
a corporation organized under the laws of the State of Florida, owning at least
80 percent of the shares of EVERGREEN MEDIA CORPORATION OF THE BAY AREA, a
corporation organized under the laws of the State of Delaware (the
"Subsidiary").
SECOND: The following plan of merger was adopted by the shareholders
and the board of directors of the Parent:
ON THE EFFECTIVE DATE (DEFINED BELOW), THE PARENTS SHALL BE MERGED
WITH AND INTO THE SUBSIDIARY PURSUANT TO THE GENERAL CORPORATION LAWS
OF THE STATES OF DELAWARE AND FLORIDA (THE "MERGER"). UPON
CONSUMMATION OF THE MERGER, THE SUBSIDIARY SHALL BE THE SURVIVING
CORPORATION AND THE PARENT WILL CEASE TO EXIST.
THE EFFECTIVE DATE OF THE MERGER SHALL BE THE DATE UPON WHICH A
CERTIFICATE OF OWNERSHIP AND MERGER IS FILED WITH THE SECRETARY OF
STATE OF THE STATE OF DELAWARE.
THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE SURVIVING
CORPORATION.
THE DIRECTORS AND OFFICERS OF THE SUBSIDIARY, IMMEDIATELY FOLLOWING
THE EFFECTIVE DATE OF THE MERGER, SHALL BE THOSE INDIVIDUALS SERVING
IN SUCH RESPECTIVE CAPACITIES FOR THE PARENT IMMEDIATELY PRIOR TO THE
MERGER.
THE CERTIFICATE OF INCORPORATION AND BYLAWS OF THE SUBSIDIARY, AS IN
EFFECT IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE MERGER, SHALL,
IMMEDIATELY FOLLOWING THE MERGER, BE THE CERTIFICATE OF
<PAGE> 15
INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION.
EACH SHARE OF COMMON STOCK, $1.00 PAR VALUE, OF THE SUBSIDIARY,
OUTSTANDING IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE MERGER
SHALL, BY VIRTUE OF THE MERGER, BE CANCELLED. EACH SHARE OF COMMON
STOCK, $1.00 PAR VALUE, OF THE PARENT, OUTSTANDING IMMEDIATELY PRIOR
TO THE EFFECTIVE DATE OF THE MERGER, SHALL, BY VIRTUE OF THE MERGER
AND WITHOUT ANY ACTION ON THE PART OF THE HOLDER THEREOF, BE CONVERTED
INTO ONE SHARE OF COMMON STOCK, $1.00 PAR VALUE, OF THE SUBSIDIARY.
AT AND AFTER THE EFFECTIVE DATE, THE SUBSIDIARY SHALL THEREUPON AND
THEREAFTER POSSESS ALL THE RIGHTS, PRIVILEGES, POWERS AND FRANCHISES
OF THE PARENT AND SHALL BECOME SUBJECT TO THE RESTRICTIONS,
DISABILITIES AND DUTIES OF THE PARENTS; ALL AND SINGULAR, THE RIGHTS,
PRIVILEGES, POWERS AND FRANCHISES OF THE PARENT, AND ALL PROPERTY,
REAL, PERSONAL AND MIXED, AND ALL DEBTS DUE TO THE PARENT, ON WHATEVER
ACCOUNT, AND ALL OTHER THINGS IN ACTION OR BELONGING TO THE PARENT,
SHALL BE VESTED IN THE SUBSIDIARY; ALL PROPERTY RIGHTS, PRIVILEGES,
POWERS AND FRANCHISES AND ALL AND EVERY OTHER INTEREST SHALL BE
THEREAFTER THE PROPERTY OF THE SUBSIDIARY AS THEY WERE OF THE PARENT;
THE TITLE TO ANY REAL ESTATE VESTED BY DEED OR OTHERWISE OR ANY OTHER
INTEREST IN REAL ESTATE VESTED ANY INSTRUMENT OR OTHERWISE IN THE
PARENT, SHALL NOT REVERT OR BECOME IN ANY WAY IMPAIRED BY REASON OF
THE MERGER; ALL RIGHTS OF CREDITORS AND ALL LIENS UPON ANY PROPERTY OF
THE PARENT SHALL BE PRESERVED UNIMPAIRED AND ALL DEBTS, LIABILITIES
AND DUTIES OF THE PARENT SHALL THENCEFORTH ATTACH TO THE SUBSIDIARY
AND SHALL BE ENFORCEABLE AGAINST IT TO THE SAME EXTENT AS IF SAID
DEBTS, LIABILITIES AND DUTIES HAD BEEN INCURRED OR CONTRACTED BY IT.
THE OFFICERS OF THE PARENT SHALL (i) MAKE AND EXECUTE A CERTIFICATE
OF OWNERSHIP AND MERGER AND ARTICLES OF MERGER, SETTING FORTH THE
SPECIFIC LANGUAGE OR THE INTENT OF THE PLAN OF MERGER (ii) CAUSE THE
SAME TO BE FILED WITH THE SECRETARIES OF STATE OF DELAWARE AND
FLORIDA, AND (iii) DO ALL ACTS AND THINGS WHATSOEVER, WHETHER WITHIN
OR WITHOUT THE STATES OF DELAWARE AND FLORIDA, WHICH MAY BE NECESSARY
OR PROPER TO EFFECT THE MERGER.
2
<PAGE> 16
THIRD: The pro rata issuance of shares of the Subsidiary to the
holders of the shares of the Parent upon surrender of any certificates therefor
is provided for as follows: Each share of stock of the Parent, outstanding
immediately prior to the effective date of the merger, shall be converted into
one share of stock of the Subsidiary.
FOURTH: The Parent is the sole shareholder of the Subsidiary.
FIFTH: The shareholders and directors of the Parent and the
Subsidiary have unanimously agreed to the foregoing plan of merger by written
consents dated as of March 30, 1995.
Signed this 30th day of March, 1995.
EVERGREEN MEDIA CORPORATION OF
THE BAY AREA, a Delaware corporation
By: /s/ SCOTT K. GINSBURG
-------------------------------------
Scott K. Ginsburg, President
EVERGREEN MEDIA CORPORATION OF
THE BAY AREA, a Florida corporation
By: /s/ SCOTT K. GINSBURG
-------------------------------------
Scott K. Ginsburg, President
3
<PAGE> 17
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVGM MERGER SUB ONE, INC.", CHANGING ITS NAME FROM "EVGM MERGER
SUB ONE, INC." TO "EVERGREEN MEDIA CORPORATION OF THE BAY AREA", FILED IN THIS
OFFICE ON THE FOURTEENTH DAY OF NOVEMBER, A.D. 1994, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7299961
DATE: 11-14-94
<PAGE> 18
CERTIFICATE OF AMENDMENT OF CERTIFICATE
OF INCORPORATION BEFORE PAYMENT OF
ANY PART OF THE CAPITAL
OF
EVGM MERGER SUB ONE, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is:
EVGM Merger Sub One, Inc.
2. The corporation has not received any payment for any of its
stock.
3. The certificate of incorporation of the corporation is hereby
amended by striking out Article FIRST thereof and by substituting in lieu of
said Article the following new Article:
"FIRST: The name of the corporation (hereinafter
sometimes referred to as the "Corporation") is:
Evergreen Media Corporation of the Bay Area"
4. The amendment of the certificate of incorporation of the
corporation herein certified was duly adopted, pursuant to the provisions of
Section 241 of the General Corporation Law of the State of Delaware, by the
sole incorporator, no directors having been named in the certificate of
incorporation and no directors having been elected.
Signed on: November 11, 1994
/s/ SYLVIA L. ADAMS
---------------------------------------
Sylvia L. Adams, Sole Incorporator
<PAGE> 19
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVGM MERGER SUB ONE, INC.", FILED IN THIS OFFICE ON THE NINTH
DAY OF NOVEMBER, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7295100
DATE: 11-09-94
<PAGE> 20
CERTIFICATE OF INCORPORATION
OF
EVGM MERGER SUB ONE, INC.
FIRST: The name of the corporation (hereinafter sometimes referred
to as the "Corporation") is:
EVGM MERGER SUB ONE, INC.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is five thousand (5,000) shares of
common stock with a par value of $1.00 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 21
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change
or repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 22
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation
Law of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 8th day of November, 1994.
/s/ SYLVIA L. ADAMS
-----------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.10
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF THE BAY AREA
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends, Directors' Duties . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
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<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
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<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
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resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
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telegram; special meetings shall be called by the President or the Secretary in
like manner and in like manner and on like notice on the written request of two
directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
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Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
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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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
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resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
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business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
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Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
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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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
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Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
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shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
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Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
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ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of the Bay Area, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
November 14, 1994.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 14th day of
November, 1994.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.11
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WAPE LICENSE CORP.", CHANGING ITS NAME FROM "WAPE LICENSE CORP."
TO "KIOI LICENSE CORP.", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF APRIL,
A.D. 1994, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7097815
[SEAL] DATE: 04-22-94
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WAPE LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, WAPE License Corp. (the "Corporation"), a Delaware corporation, hereby
certifies that:
1. The Certificate of Incorporation of the Corporation is
hereby amended by deleting the present Article FIRST
and inserting in lieu thereof a new Article FIRST, as
follows:
FIRST: The name of the Corporation (hereinafter
sometimes referred to as the "Corporation") is:
"KIOI License Corp."
2. The Board of Directors of the Corporation, by written
consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Scott K. Ginsburg, its
President, and attested by Matthew E. Devine, its assistant secretary, on this
21st day of April, 1994.
ATTEST: WAPE LICENSE CORP.,
a Delaware Corporation
/s/ MATTHEW E. DEVINE By: /s/ SCOTT K. GINSBURG
---------------------- ----------------------
Matthew E. Devine Name: Scott K. Ginsburg
Assistant Secretary President
<PAGE> 3
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WAPE LICENSE CORP." FILED IN THIS OFFICE ON THE NINTH DAY OF
OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY AND RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ MICHAEL RATCHFORD
---------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION 3646698
[SEAL] DATE: 11/03/1993
<PAGE> 4
CERTIFICATE OF INCORPORATION
OF
WAPE LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to a the
corporation) is:
WAPE License Corp
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such address a 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time he
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for Purchase or subscription by the I
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 5
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or is stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved intentional misconduct or a knowing violation or
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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall to provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation
2
<PAGE> 6
I, the undersigned, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 9th day of October, 1992.
/s/ SYLVIA L. ADAMS
-------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 7
STATE OF DELAWARE
[SEAL]
OFFICE OF THE SECRETARY OF STATE
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WAPE LICENSE CORP." FILED IN THIS OFFICE ON THE NINTH DAY OF
OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY AND RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ MICHAEL RATCHFORD
---------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION 3646698
[SEAL] DATE: 11/03/1993
<PAGE> 8
CERTIFICATE OF INCORPORATION
OF
WAPE LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes
referred to a the corporation) is:
WAPE License Corp
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, New Castle County,
Wilmington, Delaware 19801. The name of its registered agent at such address a
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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which
the Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
he issued, sold or offered for sale by the Corporation; provided, however, that
in connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for Purchase or subscription by the I
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 9
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and am in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or is stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved intentional misconduct or a knowing violation or
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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall to provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation
2
<PAGE> 10
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, herein
declaring and certifying that this is my ad and deed and do facts herein stated
are true, and accordingly have hereunto set my hand this 9th day of
October, 1992.
/s/ SYLVIA L. ADAMS
-------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.12
BY-LAWS
OF
KIOI LICENSE CORP.
(f/k/a WAPE LICENSE CORP.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors' Duties. . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
3
<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
4
<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
5
<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
7
<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
8
<PAGE> 12
resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
9
<PAGE> 13
business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
10
<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
11
<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
12
<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
13
<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to another action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
15
<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WAPE License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
October 15, 1992.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 15th day of
October, 1992.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
Exhibit 3.13
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF CHICAGO AM", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF ILLINOIS" UNDER THE NAME OF
"CHANCELLOR MEDIA CORPORATION OF ILLINOIS", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE
THE EIGHTH DAY OF JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[Secretary's Office Stamp] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2342158 8100M AUTHENTICATION: 9188219
981265950 DATE: 07-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF CHICAGO AM
INTO
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
Chancellor Media Corporation of Chicago AM Delaware
Chancellor Media Corporation of Illinois Delaware
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of Illinois.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
Illinois shall be the Certificate of Incorporation of the surviving corporation,
to remain unchanged until amended in accordance with the provisions thereof and
of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished
by the surviving corporation on request and without cost to any stockholder of
any constituent corporation.
<PAGE> 3
Dated: July 8, 1998
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 4
State of Delaware
Office of the Secretary of State
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"KKSF LICENSE CORP.", A DELAWARE CORPORATION,
"WJMN LICENSE CORP.", A DELAWARE CORPORATION,
"WNUA LICENSE CORP.", A DELAWARE CORPORATION,
"WXKS(AM) LICENSE CORP.", A DELAWARE CORPORATION,
"WXKS(FM) LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF ILLINOIS" UNDER THE NAME OF
"CHANCELLOR MEDIA CORPORATION OF ILLINOIS", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 3:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2342158 8100M AUTHENTICATION: 9230052
981300473 DATE: 07-31-98
<PAGE> 5
CERTIFICATE OF MERGER
OF
KKSF LICENSE CORP.,
WNUA LICENSE CORP.,
WXKS(AM) LICENSE CORP.,
WXKS(FM) LICENSE CORP.,
AND
WJMN LICENSE CORP.
INTO
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
NAME STATE OF INCORPORATION
- ---- ----------------------
KKSF License Corp. Delaware
WNUA License Corp. Delaware
WXKS(AM) License Corp. Delaware
WXKS(FM) License Corp. Delaware
WJMN License Corp. Delaware
Chancellor Media Corporation of Illinois Delaware
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of Illinois.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation
of Illinois shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the
provisions thereof and of applicable law.
<PAGE> 6
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished
by the surviving corporation on request and without cost to any stockholder of
any constituent corporation.
2
<PAGE> 7
Dated: July 31, 1998
CHANCELLOR MEDIA CORPORATION
OF ILLINOIS
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 8
PAGE 1
State of Delaware
Office of the Secretary of State
-----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF THE WINDY CITY", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF ILLINOIS" UNDER THE NAME OF
"CHANCELLOR MEDIA CORPORATION OF ILLINOIS", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 3:25 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2342158 8100M AUTHENTICATION: 9230046
981300469 DATE: 07-31-98
<PAGE> 9
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE WINDY CITY
INTO
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
Chancellor Media Corporation of the Windy City Delaware
Chancellor Media Corporation of Illinois Delaware
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of Illinois.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of Illinois shall be the Certificate of Incorporation of the
surviving corporation, to remain unchanged until amended in accordance with the
provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 10
Dated: July 31, 1998
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
<PAGE> 11
[CT CORPORATION SYSTEM LETTERHEAD]
Dear Ms. Serena:
Re: Chancellor Media Corporation of Illinois (DE.DOM.)
Merging: WMXD License Corp. (DE.DOM.)
WJLE License Corp. (DE.DOM.)
WWWW/WDFN License Corp. (DE.DOM.)
KMEL License Corp. (DE.DOM.)
WEJM/WEJM-FM/WVAZ License Corp. (DE.DOM.)
KSKY License Corp. (DE.DOM.)
WKQI/WDOZ/WNIC License Corp. (DE.DOM.)
WYNY License Corp. (DE.DOM.)
Under the name of: Chancellor Media Corporation Of Illinois
*Chancellor Media Corporation of New York
*Chancellor Media Corporation of Michigan
Pursuant to instructions received, the Certificate of Merger and two
*Certificates of Incorporation for each of the above were filed in the
office of the Secretary of State of Delaware on July 30, 1998 at 4:30 p.m.
We enclose one certified copy of each document.
Very truly yours,
/s/ Terry L. Ford
Terry L. Ford
Senior Customer Specialist
TLF/lac
Enc.
Jane C. Serena
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Suite 1300
Washington, DC 20004-2505
<PAGE> 12
Page 1
State of Delaware
Office of the Secretary of State
--------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"KMEL LICENSE CORP.", A DELAWARE CORPORATION,
"KSKY LICENSE CORP.", A DELAWARE CORPORATION,
"WEJM/WEJM-FM/WVAZ LICENSE CORP.", A DELAWARE CORPORATION,
"WJLB LICENSE CORP.", A DELAWARE CORPORATION,
"WKQI/WDOZ/WNIC LICENSE CORP.", A DELAWARE CORPORATION,
"WMXD LICENSE CORP.", A DELAWARE CORPORATION,
"WWWW/WDFN LICENSE CORP.", A DELAWARE CORPORATION,
"WYNY LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF ILLINOIS" UNDER THE
NAME OF "CHANCELLOR MEDIA CORPORATION OF ILLINOIS", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTIETH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2342158 8100M AUTHENTICATION: 9228734
981299225 DATE: 07-31-98
<PAGE> 13
CERTIFICATE OF MERGER
OF
WMXD LICENSE CORP.,
WJLB LICENSE CORP.,
WWWW/WDFN LICENSE CORP.,
KMEL LICENSE CORP.,
WEJM/WEJM-FM/WVAZ LICENSE CORP.,
KSKY LICENSE CORP.,
WLQI/WDOZ/WNIC LICENSE CORP.
AND
WYNY LICENSE CORP.
INTO
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
The undersigned corporation, organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
------ --------------------------
WMXD License Corp. Delaware
WJLB License Corp. Delaware
WWWW/WDFN License Corp. Delaware
KMEL License Corp. Delaware
WEJM/WEJM-FM/WVAZ License Corp. Delaware
KSKY License Corp. Delaware
WKQI/WDOZ/WNIC License Corp. Delaware
WYNY License Corp. Delaware
Chancellor Media Corporation of Illinois Delaware
SECOND: That a Plan and Agreement of Merger among the
parties to the merger has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of Illinois.
<PAGE> 14
FOURTH: The Certificate of Incorporation of Chancellor
Media Corporation of Illinois shall be the Certificate of Incorporation of the
surviving corporation, to remain unchanged until amended in accordance with the
provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
2
<PAGE> 15
Dated: July 29, 1998
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
By: /s/ Andrea Hulcy
----------------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 16
State of Delaware
Office of the Secretary of State
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF ILLINOIS" FILED IN THIS OFFICE
ON THE TWENTY-NINTH DAY OF JUNE, A.D. 1993, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEED FOR RECORDING.
* * * * * * * * * *
[DELAWARE SECRETARY'S /s/ William T. Quillen
OFFICE SEAL] ------------------------------------------
William T. Quillen, Secretary of State
733180047
AUTHENTICATION: *3959091
DATE: 06/30/1993
<PAGE> 17
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ILLINOIS
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
EVERGREEN MEDIA CORPORATION OF ILLINOIS
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 18
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 19
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 29th day of June, 1993.
/s/ Sylvia L. Adams
---------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 20
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVERGREEN MEDIA CORPORATION OF ILLINOIS", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF ILLINOIS" TO "CHANCELLOR MEDIA CORPORATION OF
ILLINOIS", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997,
AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
------------------------------------------
Edward J. Freel, Secretary of State
2342158 8100 AUTHENTICATION: 8709755
971352144 DATE: 10/20/97
<PAGE> 21
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ILLINOIS
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of Illinois (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended by
deleting the present Article FIRST and inserting in lieu thereof a new
Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to as
the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF ILLINOIS"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION OF ILLINOIS,
a Delaware Corporation
By: /s/ Omar Choucair
---------------------
Name: Omar Choucair
Title: Vice President
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EXHIBIT 3.14
BY-LAWS
OF
CHANCELLOR MEDIA CORPORATION OF ILLINOIS
(FORMERLY, EVERGREEN MEDIA CORPORATION OF ILLINOIS)
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TABLE OF CONTENTS
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ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
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Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors' Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
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ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
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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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
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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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
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resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
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telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
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Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
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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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
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resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
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business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
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Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
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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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
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Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
13
<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to another action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
15
<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of Illinois, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
June 30, 1993.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
June, 1993.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.15
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"WMVP-AM LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA ILLINOIS LICENSE CORP." UNDER THE NAME OF
"CHANCELLOR MEDIA ILLINOIS LICENSE CORP.", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE
THE EIGHTH DAY OF JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188220
[SEAL] DATE: 07-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
WMVP-AM LICENSE CORP.
INTO
CHANCELLOR MEDIA ILLINOIS LICENSE CORP.
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
WMVP-AM License Corp. Delaware
Chancellor Media Illinois License Corp. Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Illinois License Corp.
FOURTH: The Certificate of Incorporation of Chancellor Media Illinois
License Corp. shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
<PAGE> 3
Dated: July 8 ,1998
----------------------
CHANCELLOR MEDIA ILLINOIS
LICENSE CORP.
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WRCX LICENSE CORP.", CHANGING ITS NAME FROM "WRCX LICENSE CORP." TO
"CHANCELLOR MEDIA ILLINOIS LICENSE CORP.", FILED IN THIS OFFICE ON THE THIRD DAY
OF JUNE, A.D. 1998, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9116328
[SEAL] DATE: 06-03-98
<PAGE> 5
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WRCX LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WRCX License Corp. (the "Corporation"), a Delaware corporation, hereby
certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA ILLINOIS LICENSE CORP."
2. The Directors and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Andrea Huley, its Vice
President, on this 3rd day of June, 1998.
WRCX LICENSE CORP.,
a Delaware Corporation
By: /s/ ANDREA HULCY
-----------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 6
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THAT "WRCY LICENSE CORP." IS DULY INCORPORATED UNDER THE LAWS OF THE
STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE
NOT HAVING BEEN CANCELLED OR DISSOLVED SO FAR AS THE RECORDS OF THIS OFFICE SHOW
AND IS DULY AUTHORIZED TO TRANSACT BUSINESS.
THE FOLLOWING DOCUMENTS HAVE BEEN FILED:
CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIRST DAY OF JULY, A.D.
1993, AT 4:30 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "WWBZ LICENSE CORP." TO
"WRCX LICENSE CORP.", FILED THE NINTH DAY OF NOVEMBER, A.D. 1994, AT 4 O'CLOCK
P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE
ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8428894
[SEAL] DATE: 04-21-97
<PAGE> 7
Page 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WWBZ LICENSE CORP.", CHANGING ITS NAME FROM "WWBZ LICENSE CORP." TO "WRCX
LICENSE CORP.", FILED IN THIS OFFICE ON THE NINTH DAY OF NOVEMBER, A.D. 1994, AT
4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8428893
[SEAL] DATE: 04-21-97
<PAGE> 8
11-9-94
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WWBZ LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of the
State of Delaware, WWBZ License Corp. (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"WRCX License Corp."
2. The Board of Directors of the Corporation, by written consent,
adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Scott K. Ginsburg, its
president, and attested by Matthew E. Devine, its assistant secretary, on this
8th day of November, 1994.
ATTEST: WWBZ LICENSE CORP., a Delaware
corporation
/s/ MATTHEW E. DEVINE By: /s/ SCOTT K. GINSBURG
- --------------------------- -----------------------------
Matthew E. Devine Scott K. Ginsburg
Assistant Secretary President
<PAGE> 9
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WWBZ LICENSE CORP." FILED IN THIS OFFICE ON THE TWENTY-FIRST
DAY OF JULY, A.D. 1993, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3986014
[SEAL] DATE: 11-22-93
<PAGE> 10
CERTIFICATE OF INCORPORATION
OF
WWBZ LICENSE CORP.
FIRST: The name of the Corporation (hereinafter sometimes referred to as
the "Corporation") is:
WWBZ License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 11
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: 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 the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 12
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 21st day of July, 1993.
/s/ SYLVIA L. ADAMS
-----------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.16
BY-LAWS
OF
WRCX LICENSE CORP.
(f/k/a WWBZ LICENSE CORP.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends' Directors' Duties . . . . .. . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
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<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
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<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
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<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
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<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
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<PAGE> 12
resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
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<PAGE> 13
business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
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<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
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<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
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<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
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<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
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<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
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ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
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<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WWBZ License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
July 22, 1993.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 22nd day of
July, 1993.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
Exhibit 3.17
State of Delaware PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES:
"EVERGREEN MEDIA CORPORATION OF DADE COUNTY", A FLORIDA CORPORATION,
WITH AND INTO "EVERGREEN MEDIA CORPORATION OF DADE COUNTY" UNDER THE
NAME OF "EVERGREEN MEDIA CORPORATION OF DADE COUNTY", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE THIRTY-FIRST DAY OF MARCH, A.D. 1995, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[DELAWARE SECRETARY'S SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7458516
2450994 8100M
DATE: 03-31-95
950071804
<PAGE> 2
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a Florida corporation
INTO
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a Delaware corporation
* * * * * *
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a corporation organized and
existing under the laws of Florida (the "Parent", sometimes also referred to
herein as the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Parent was incorporated on the 5th day of May, 1983,
pursuant to the General Corporation Laws of the State of Florida, the provisions
of which permit the merger of a corporation of another state and a corporation
organized and existing under the laws of said state.
SECOND: That the Parent owns all of the outstanding shares of stock of
EVERGREEN MEDIA CORPORATION OF THE DADE COUNTY, a corporation incorporated on
the 9th day of November, 1994, pursuant to the General Corporation Laws of the
State of Delaware (the "Subsidiary", sometimes also referred to herein as
"EDADE-DE").
THIRD; That the shareholders and directors of the Parent, by the
following resolutions of its shareholders and Board of Directors, duly adopted
via written consent on the 30th day of March, 1995, have decided to merge the
Parent into said Subsidiary:
"RESOLVED, THAT THE CORPORATION SHALL MERGE INTO ITS SUBSIDIARY,
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, A DELAWARE CORPORATION
("EDADE-DE").
FURTHER RESOLVED, THE THE TERMS AND CONDITIONS OF SAID MERGER (THE
"MERGER") ARE AS FOLLOWS:
ON THE EFFECTIVE DATE OF THE MERGER, THE CORPORATION SHALL BE MERGED
WITH AND INTO EDADE-DE PURSUANT TO THE GENERAL CORPORATION LAWS OF THE
STATES OF DELAWARE AND FLORIDA. UPON CONSUMATION OF THE MERGER,
EDADE-DE SHALL BE THE SURVIVING CORPORATION AND THE CORPORATION WILL
CEASE TO EXIST.
<PAGE> 3
The effective date of the Merger shall be the date upon which a Certificate
of Ownership and Merger is filed with the Secretary of State of the State
of Delaware.
The laws of the State of Delaware shall govern the surviving corporation.
The directors and officers of EDADE-DE, immediately following the effective
date of the Merger, shall be those individuals serving in such respective
capacities for the Corporation immediately prior to the Merger.
The Certificate of Incorporation and Bylaws of EDADE-DE, as in effect
immediately prior to the effective date of the Merger, shall, immediately
following the Merger, be the Certificate of Incorporation and Bylaws of the
surviving corporation.
Each share of common stock, $1.00 par value, of EDADE-DE, outstanding
immediately prior to the effective date of the Merger, shall, by virtue of
the Merger, be cancelled. Each share of common stock, $1.00 par value, of
the Corporation, outstanding immediately prior to the effective date of the
Merger, shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into one share of common stock, $1.00
par value, of EDADE-DE.
At and after the effective date, EDADE-DE shall thereupon and thereafter
possess all the rights, privileges, powers and franchises of the
Corporation and shall become subject to the restrictions, disabilities and
duties of the Corporation; all and singular, the rights, privileges, powers
and franchises of the Corporation, and all property, real, personal and
mixed, and all debts due to the Corporation, on whatever account, and all
other things in action or belonging to the Corporation, shall be vested in
EDADE-DE; all property rights, privileges, powers and franchises and all
and every other interest shall be thereafter the property of EDADE-DE as
they were of the Corporation; the title to any real estate vested by deed
or otherwise or any other interest in real estate vested by any instrument
or otherwise in the Corporation, shall not revert or become in any way
impaired by reason of the Merger; all rights of creditors
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<PAGE> 4
and all liens upon any property of the Corporation shall be preserved
unimpaired and all debts, liabilities and duties of the Corporation shall
thenceforth attach to EDADE-DE and shall be enforceable against EDADE-DE
to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
FURTHER RESOLVED, that the officers of the Corporation be and each hereby
is directed and authorized (i) to make and execute a Certificate of
Ownership and Merger and Articles of Merger, setting forth the specific
language or the intent of these resolutions, (ii) to cause the same to be
filed with the Secretaries of State of Delaware and Florida, and (iii) to
do all acts and things whatsoever, whether within or without the States of
Delaware and Florida, which may be necessary or proper to effect the
Merger."
FOURTH: That the proposed merger has been adopted, approved, certified,
executed and acknowledged by the Parent in accordance with the laws of the
State of Florida, under which the Parent was organized.
IN WITNESS WHEREOF, EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a Florida
corporation, has caused this Certificate to be signed by Scott K. Ginsburg, its
president, this 30th day of March, 1995.
EVERGREEN MEDIA CORPORATION OF
DADE COUNTY, a Florida corporation
By: /s/ Scott K. Ginsburg
------------------------------------
Scott K. Ginsburg, President
3
<PAGE> 5
[FLORIDA STATE SEAL]
FLORIDA DEPARTMENT OF STATE
Sandra B. Mortham
Secretary of State
March 31, 1995
CT Corporation System
1311 Executive Center Drive
Suite 200
Tallahassee, FL 32301
The Articles of Merger were filed on March 31, 1995, for EVERGREEN MEDIA
CORPORATION OF DADE COUNTY, the surviving Delaware corporation not authorized to
transact business in Florida.
Should you have any further questions regarding this matter, please feel free to
call (904) 487-6050, the Amendment Filing Section.
Annette Hogan
Corporate Specialist
Division of Corporations Letter Number: 895A00014698
Division of Corporations - P.O. Box 6327 - Tallahassee, Florida 32314
<PAGE> 6
[FILED
95 MAR 31 AM 11:50
SECRETARY OF STATE
TALLAHASSEE, FLORIDA]
ARTICLES OF MERGER
OF
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a Florida corporation
INTO
EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a Delaware corporation
Pursuant to Section 607.1104 of the Florida Business Corporation Act,
the undersigned corporations adopt the following Articles of Merger:
FIRST: EVERGREEN MEDIA CORPORATION OF DADE COUNTY (the "Parent") is a
corporation organized under the laws of the State of Florida, owning at least 80
percent of the shares of EVERGREEN MEDIA CORPORATION OF DADE COUNTY, a
corporation organized under the laws of the State of Delaware (the
"Subsidiary").
SECOND: The following plan of merger was adopted by the shareholders
and the board of directors of the Parent:
On the effective date (defined below), the Parent shall be merged with
and into the Subsidiary pursuant to the general corporation laws of the
States of Delaware and Florida (the "Merger"). Upon consummation of the
Merger, the Subsidiary shall be the surviving corporation and the
Parent will cease to exist.
The effective date of the Merger shall be the date upon which a
Certificate of Ownership and Merger is filed with the Secretary of
State of the State of Delaware.
The laws of the State of Delaware shall govern the surviving
corporation.
The directors and officers of the Subsidiary, immediately following the
effective date of the Merger, shall be those individuals serving in
such respective capacities for the Parent immediately prior to the
Merger.
The Certificate of Incorporation and Bylaws of the Subsidiary, as in
effect immediately prior to the effective date of the Merger, shall,
immediately following the Merger, be the Certificate of
<PAGE> 7
Incorporation and Bylaws of the surviving corporation.
Each share of common stock, $1.00 par value, of the Subsidiary,
outstanding immediately prior to the effective date of the Merger
shall, by virtue of the Merger, be cancelled. Each share of common
stock, $1.00 par value, of the Parent, outstanding immediately prior to
the effective date of the Merger, shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into
one share of common stock, $1.00 par value, of the Subsidiary.
At and after the effective date, the Subsidiary shall thereupon and
thereafter possess all the rights, privileges, powers and franchises of
the Parent and shall become subject to the restrictions, disabilities
and duties of the Parent; all and singular, the rights, privileges,
powers and franchises of the Parent, and all property, real, personal
and mixed, and all debts due to the Parent, on whatever account, and
all other things in action or belonging to the Parent, shall be vested
in the Subsidiary; all property rights, privileges, powers and
franchises and all and every other interest shall be thereafter the
property of the Subsidiary as they were of the Parent; the title to any
real estate vested by deed or otherwise or any other interest in real
estate vested by any instrument or otherwise in the Parent, shall not
revert or become in any way impaired by reason of the Merger; all
rights of creditors and all liens upon any property of the Parent shall
be preserved unimpaired and all debts, liabilities and duties of the
Parent shall thenceforth attach to the Subsidiary and shall be
enforceable against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
The officers of the Parent shall (i) make and execute a Certificate of
Ownership and Merger and Articles of Merger, setting forth the specific
language or the intent of the plan of merger (ii) cause the same to be
filed with the Secretaries of State of Delaware and Florida, and (iii)
do all acts and things whatsoever, whether within or without the States
of Delaware and Florida, which may be necessary or proper to effect the
Merger.
2
<PAGE> 8
THIRD: The pro rata issuance of shares of the Subsidiary to the holders
of the shares of the Parent upon surrender of any certificates therefor is
provided for as follows: Each share of stock of the Parent, outstanding
immediately prior to the effective date of the merger, shall be converted into
one share of stock of the Subsidiary.
FOURTH: The Parent is the sole shareholder of the Subsidiary.
FIFTH: The shareholders and directors of the Parent and the Subsidiary
have unanimously agreed to the foregoing plan of merger by written consents
dated as of March 30, 1995.
Signed this 30th day of March, 1995.
EVERGREEN MEDIA CORPORATION OF
DADE COUNTY, a Delaware
corporation
By: /s/ Scott K. Ginsburg
---------------------------
Scott K. Ginsburg, President
EVERGREEN MEDIA CORPORATION OF
DADE COUNTY, a Florida
corporation
By: /s/ Scott K. Ginsburg
---------------------------
Scott K. Ginsburg, President
3
<PAGE> 9
State of Delaware PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVGM MERGER SUB THREE, INC.", CHANGING ITS NAME FROM "EVGM MERGER
SUB THREE, INC." TO "EVERGREEN MEDIA CORPORATION OF DADE COUNTY", FILED IN THIS
OFFICE ON THE FOURTEENTH DAY OF NOVEMBER, A.D. 1994, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
[Seal of Secretary of State of the
State of Delaware]
2450994 8100 AUTHENTICATION: 7299946
DATE: 11-14-94
944217940
<PAGE> 10
CERTIFICATE OF AMENDMENT OF CERTIFICATE
OF INCORPORATION BEFORE PAYMENT OF
ANY PART OF THE CAPITAL
OF
EVGM MERGER SUB THREE, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is:
EVGM Merger Sub Three, Inc.
2. The corporation has not received any payment for any of its stock.
3. The certificate of incorporation of the corporation is hereby
amended by striking out Article FIRST thereof and by substituting in lieu of
said Article the following new Article:
"FIRST: The name of the corporation (hereinafter sometimes
referred to as the 'Corporation') is:
Evergreen Media Corporation of Dade County"
4. The amendment of the certificate of incorporation of the corporation
herein certified was duly adopted, pursuant to the provisions of Section 241 of
the General Corporation Law of the State of Delaware, by the sole incorporator,
no directors having been named in the certificate of incorporation and no
directors having been elected.
Signed on: November 11, 1994.
/s/ Sylvia L. Adams
----------------------------------
Sylvia L. Adams, Sole Incorporator
<PAGE> 11
State of Delaware PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVGM MERGER SUB THREE, INC.", FILED IN THIS OFFICE ON THE
NINTH DAY OF NOVEMBER, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[Seal of Secretary of State -----------------------------------
of the State of Delaware] Edward J. Freel, Secretary of State
AUTHENTICATION: 7295061
2450994 8100
DATE: 11-09-94
944214621
<PAGE> 12
CERTIFICATE OF INCORPORATION
OF
EVGM MERGER SUB THREE, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
EVGM MERGER SUB THREE, INC.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is five thousand (5,000) shares of
common stock with a par value of $1.00 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 13
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington. D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 14
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of November, 1994.
/s/ Sylvia L. Adams
--------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.18
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF DADE COUNTY
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
3
<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
4
<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
5
<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
7
<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
8
<PAGE> 12
resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
9
<PAGE> 13
business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
10
<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
11
<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
12
<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
13
<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
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<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of Dade County, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
November 14, 1994.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 14th day of
November, 1994.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.19
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WVCG LICENSE CORP." FILED IN THIS OFFICE ON THE NINTH DAY OF
OCTOBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
**********
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: 8646628
DATE: [ILLEGIBLE]
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
WVCG LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WVCG LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 3
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 4
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 9th day of October, 1992.
/s/ SYLVIA L. ADAMS
--------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.20
BY-LAWS
OF
WVCG LICENSE CORP.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends' Directors' Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
3
<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
4
<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
5
<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
7
<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or other similar or dissimilar title. At the time of the election of
officers, the directors may by
8
<PAGE> 12
resolution determine the order of their rank. Any number of offices may be held
by the same person unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
9
<PAGE> 13
business and officers of the Corporation. He shall preside at all meetings of
the stockholders 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 an ex-officio
member of all committees and shall have the general powers and duties of
management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
10
<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
11
<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
12
<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
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<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
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<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WVCG License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
October 15, 1992.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 15th day of
October, 1992.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.21
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF BOSTON", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF MASSACHUSETTS" UNDER THE
NAME OF "CHANCELLOR MEDIA CORPORATION OF MASSACHUSETTS", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 11 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229078
[SEAL] DATE: 07-31-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF BOSTON
INTO
CHANCELLOR MEDIA CORPORATION OF MASSACHUSETTS
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of Boston Delaware
Chancellor Media Corporation of Massachusetts Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of Massachusetts.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
Massachusetts shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 3
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
2
<PAGE> 4
Dated: July 31 ,1998
----------------------
CHANCELLOR MEDIA CORPORATION OF
MASSACHUSETTS
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 5
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF MASSACHUSETTS", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF MASSACHUSETTS" TO "CHANCELLOR MEDIA CORPORATION
OF MASSACHUSETTS", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER,
A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8709859
[SEAL] DATE: 10-20-97
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF MASSACHUSETTS
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of Massachusetts (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation" is:
"CHANCELLOR MEDIA CORPORATION OF MASSACHUSETTS"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF MASSACHUSETTS,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 7
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PYRAMID COMMUNICATIONS OF MASSACHUSETTS, INC.", CHANGING ITS NAME FROM
"PYRAMID COMMUNICATIONS OF MASSACHUSETTS, INC." TO "EVERGREEN MEDIA CORPORATION
OF MASSACHUSETTS", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY,
A.D. 1996, AT 4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7793865
[SEAL] DATE: 01-18-96
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS OF MASSACHUSETTS, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications of Massachusetts, Inc. (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF MASSACHUSETTS"
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 17th day of January, 1996.
PYRAMM COMMUNICATIONS OF
MASSACHUSETTS, INC.,
a Delaware corporation
By: /s/ Matthew E. Devine
-------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 9
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS OF MASSACHUSETTS, INC." FILED IN THIS
OFFICE ON THE SEVENTEENTH DAY OF DECEMBER, A.D. 1993, AT 12:15 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 4202772
[SEAL] DATE: 121-20-93
<PAGE> 10
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS Of MASSACHUSETTS, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications of Massachusetts, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 11
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
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<PAGE> 12
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 16th day of December, 1993.
/s/ SYLVIA L. ADAMS
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.22
AMENDED AND RESTATED
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF MASSACHUSETTS
(f/k/a PYRAMID COMMUNICATIONS OF MASSACHUSETTS, INC.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
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<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
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there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
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which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
Evergreen Media Corporation of Massachusetts, a Delaware corporation; and
(2) That the foregoing Amended and Restated By-Laws, comprising sixteen
pages, constitute the By-Laws of said corporation as duly adopted and approved
by the Board of Directors, of said corporation as of January 17, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 17th day of
January, 1996.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.23
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"WYXR LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP." UNDER THE NAME
OF "CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP.", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE SEVENTH DAY OF AUGUST, A.D. 1998, AT 3:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9242536
[SEAL] DATE: 08-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
WYXR LICENSE CORP.
INTO
CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP.
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
WYXR License Corp. Delaware
Chancellor Media Pennsylvania License Corp. Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Pennsylvania License Corp.
FOURTH: The Certificate of Incorporation of Chancellor Media PENNSYLVANIA
LICENSE CORP. shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 300 Crescent Court,
Suite 600, Dallas, Texas 75201.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
<PAGE> 3
Dated: August 7, ,1998
----------------------
CHANCELLOR MEDIA PENNSYLVANIA
LICENSE CORP.
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"WDAS(AM) LICENSE CORP.", A DELAWARE CORPORATION,
"WDAS(FM) LICENSE CORP.", A DELAWARE CORPORATION,
"WJJZ LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP." UNDER THE
NAME OF "CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP.", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 3:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9230049
[SEAL] DATE: 07-31-98
<PAGE> 5
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
2
<PAGE> 6
Dated: July 31, ,1998
----------------------
CHANCELLOR MEDIA
PENNSYLVANIA LICENSE CORP.
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 7
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WUSL LICENSE CORP.", CHANGING ITS NAME FROM "WUSL LICENSE CORP." TO
"CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP.", FILED IN THIS OFFICE ON THE THIRD
DAY OF JUNE, A.D.1998, AT 9 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9116336
[SEAL] DATE: 06-03-98
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WUSL LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WUSL License Corp. (the "Corporation"), a Delaware corporation, hereby
certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA PENNSYLVANIA LICENSE CORP."
2. The Directors and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Andrea Hulcy, its Vice
President, on this 3rd day of June, 1998.
WUSL LICENSE CORP.,
a Delaware Corporation
By: /s/ ANDREA HULCY
-----------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 9
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WRFX (FM) LICENSE CORP.", CHANGING ITS NAME FROM "WRFX (FM) LICENSE CORP."
TO "WUSL LICENSE CORP.", FILED IN THIS OFFICE ON THE TWELFTH DAY OF JUNE, A.D.
1997, AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8510026
[SEAL] DATE: 06-13-97
<PAGE> 10
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WRFX(FM) LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WRFX(FM) License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"WUSL LICENSE CORP."
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 12th day of June, 1997.
WRFX(FM) LICENSE CORP.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 11
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PYRAMID COMMUNICATIONS - CHARLOTTE FM CORP.", CHANGING ITS NAME FROM
"PYRAMID COMMUNICATIONS - CHARLOTTE FM CORP.", TO "WRFX(FM) LICENSE CORP.",
FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT 4 O'CLOCK
P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7793532
[SEAL] DATE: 01-17-96
<PAGE> 12
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - CHARLOTTE FM CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications-Charlotte FM Corp. (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"WRFX(FM) LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 17th day of January, 1996.
PYRAMID COMMUNICATIONS --
CHARLOTTE FM CORP.,
a Delaware corporation
By: /s/ MATTHEW E. DEVINE
-----------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 13
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS-CHARLOTTE FM CORP." FILED IN THIS
OFFICE ON THE TWENTY-SECOND DAY OF NOVEMBER, A.D. 1993, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * *
/s/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *4158332
[SEAL] DATE: 11/22/1993
<PAGE> 14
CERTIFICATE OF INCORPORATION
of
PYRAMID COMMUNICATIONS - CHARLOTTE FM CORP.
The undersigned, in order to form a corporation for the purpose
hereinafter stated, under and pursuant to the provisions of the Delaware General
Corporation Law, hereby certifies that:
1. The name of the Corporation is Pyramid Communications - Charlotte FM
Corp.
2. The registered office and registered agent of the Corporation is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801.
3. 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.
4. The total number of shares of stock that the Corporation is authorized
to issue is 1,000 shares of Common Stock, par value $.01 per share.
5. The name and address of the incorporator is Kuang-Hsiang Lin, 425
Lexington Avenue, New York City, New York 10017.
6. The Board of Directors of the Corporation, acting by majority vote, may
alter, amend or repeal the By-Laws of the Corporation.
7. Except as otherwise provided by the Delaware General Corporation Law as
the same exists or may hereafter be amended, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any repeal or modification
of this Article SEVENTH by the stockholders of the Corporation shall not
adversely affect any right of protection of a director of the Corporation
existing at the time of such repeal or modification.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Incorporation on November 18, 1993.
/s/ KUANG-HSIANG LIN
-----------------------------------
Kuang-Hsiang Lin
Sole Incorporator
<PAGE> 1
EXHIBIT 3.24
AMENDED AND RESTATED
BY-LAWS
OF
WUSL LICENSE CORP.
(F.K.A. WRFX(FM) LICENSE CORP.)
(f/k/a PYRAMID COMMUNICATIONS - CHARLOTTE FM CORP.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
9
<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
11
<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
12
<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
WRFX(FM) License Corp., a Delaware corporation; and
(2) That the foregoing Amended and Restated By-Laws, comprising sixteen
pages, constitute the By-Laws of said corporation as duly adopted and approved
by the Board of Directors, of said corporation as of January 17, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 17th day of
January, 1996.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.25
MINUTE BOOK
CERTIFICATE BOOK
AND
STOCK LEDGER
OF
CHANCELLOR
(FORMERLY,
EVERGREEN)
MEDIA
CORPORATION
OF
MIAMI
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF MIAMI
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of Miami (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF MIAMI"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF MIAMI,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF MIAMI", CHANGING ITS NAME FROM "EVERGREEN
MEDIA CORPORATION OF MIAMI" TO "CHANCELLOR MEDIA CORPORATION OF MIAMI", FILED IN
THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8709765
[SEAL] DATE: 10-20-97
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF BUFFALO", CHANGING ITS NAME FROM "EVERGREEN
MEDIA CORPORATION OF BUFFALO" TO "EVERGREEN MEDIA CORPORATION OF MIAMI", FILED
IN THIS OFFICE ON THE FIFTEENTH DAY OF OCTOBER, A.D. 1996, AT 2:00 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148304
[SEAL] DATE: 10-16-96
<PAGE> 5
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 10/15/1996
960299037 - 2362755
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF BUFFALO
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Evergreen Media Corporation of Buffalo (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF MIAMI"
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
vice president, on this 10th day of October, 1996.
EVERGREEN MEDIA CORPORATION
OF BUFFALO, a Delaware corporation
By: /s/ OMAR CHOUCAIR
-------------------------------
Omar Choucair
Vice President
<PAGE> 6
Page 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PYRAMID COMMUNICATIONS - WBUF, INC.", CHANGING ITS NAME FROM "PYRAMID
COMMUNICATIONS - WBUF, INC." TO "EVERGREEN MEDIA CORPORATION OF BUFFALO", FILED
IN THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT 4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148305
[SEAL] DATE: 10-16-96
<PAGE> 7
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications - WBUF, Inc. (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF BUFFALO"
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its Assistant Secretary, on this 17th day of January, 1996.
PYRAMID COMMUNICATIONS -
WBUF, INC.,
a Delaware corporation
By: /s/ MATTHEW E. DEVINE
-------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 8
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS - WBUF, INC.", FILED IN THIS OFFICE ON
THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 1:45 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148306
[SEAL] DATE: 10-16-96
<PAGE> 9
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications - WBUF, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 10
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 11
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
-------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 12
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PYRAMID COMMUNICATIONS - WBUF, INC.", CHANGING ITS NAME FROM "PYRAMID
COMMUNICATIONS - WBUF, INC." TO "EVERGREEN MEDIA CORPORATION OF BUFFALO", FILED
IN THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT 4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7795648
[SEAL] DATE: 1-19-96
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications - WBUF, Inc. (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF BUFFALO"
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Matthew E. Devine, its
Assistant Secretary President, on this 17th day of January, 1996.
PYRAMID COMMUNICATIONS -
WBUF, INC.,
a Delaware corporation
By: /s/ MATTHEW E. DEVINE
-------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 14
Page 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS - WBUF, INC.", FILED IN THIS OFFICE
ON THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 1:45 O'CLOCK P.M.
/s/ WILLIAM T. QUILLEN
--------------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7078466
[SEAL] DATE: 04-05-94
<PAGE> 15
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
PYRAMID COMMUNICATIONS - WBUF, INC.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 16
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 17
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
---------------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 18
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS - WBUF, INC." FILED IN THIS OFFICE
ON THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 1:45 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
**********
/s/ WILLIAM T. QUILLEN
--------------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *4181321
[SEAL] DATE: 12/08/1993
<PAGE> 19
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications - WBUF, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 20
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 21
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
---------------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 22
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS - WBUF, INC." FILED IN THIS OFFICE ON
THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 1:45 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION *4181322
[SEAL] DATE: 12/08/1993
<PAGE> 23
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS - WBUF, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications - WBUF, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 24
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation
2
<PAGE> 25
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
---------------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.26
AMENDED AND RESTATED
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF MIAMI
(f/k/a EVERGREEN MEDIA CORPORATION OF BUFFALO)
(f/k/a PYRAMID COMMUNICATIONS - WBUF, INC.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
9
<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
11
<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
12
<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
Evergreen Media Corporation of Buffalo, a Delaware corporation; and
(2) That the foregoing Amended and Restated By-Laws, comprising sixteen
pages, constitute the By-Laws of said corporation as duly adopted and approved
by the Board of Directors, of said corporation as of January 17, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 17th day of
January, 1996.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.27
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WSJZ LICENSE CORP.", CHANGING ITS NAME FROM "WSJZ LICENSE CORP.",
TO "WEDR LICENSE CORP.", FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF OCTOBER,
A.D. 1996, AT 2 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148294
DATE: 10-16-96
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WSJZ LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, WSJZ License Corp. (the "Corporation"), a Delaware corporation, hereby
certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"WEDR LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair,
its vice president, on this 10th day of October, 1996.
WSJZ LICENSE CORP.,
a Delaware corporation
By: /s/ OMAR CHOUCAIR
----------------------------------------
Omar Choucair
Vice President
<PAGE> 3
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", CHANGING ITS NAME FROM
"PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", TO "WSJZ LICENSE CORP.", FILED IN
THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT 4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148295
[SEAL] DATE: 10-16-96
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS WBUF LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications WBUF License Corp. (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"WSJZ LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 17th day of January, 1996.
PYRAMID COMMUNICATIONS
WBUF LICENSE CORP.,
a Delaware corporation
By: /s/ MATTHEW E. DEVINE
----------------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 5
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", FILED IN THIS
OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 2 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8148296
DATE: 10-16-96
<PAGE> 6
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS WBUF LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications WBUF License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation Systems, Inc.
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 aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 7
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 8
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
--------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 9
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WSJZ LICENSE CORP.", CHANGING ITS NAME FROM "ESJZ LICENSE CORP." TO "WEDR
LICENSE CORP.", FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF OCTOBER, A.D. 1996,
AT 2 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8147103
DATE: 10-15-96
<PAGE> 10
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", CHANGING ITS NAME FROM
"PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", TO "WSJZ LICENSE CORP.", FILED IN
THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT 4 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7793789
DATE: 01-18-96
<PAGE> 11
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WSJZ LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, WSJZ License Corp. (the "Corporation"), a Delaware corporation, hereby
certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"WEDR LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair,
its vice president, on this 10th day of October, 1996.
WSJZ LICENSE CORP.,
a Delaware corporation
By: /s/ OMAR CHOUCAIR
----------------------------------------
Omar Choucair
Vice President
<PAGE> 12
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP.", FILED IN THIS
OFFICE ON THE EIGHTH DAY OF DECEMBER A.D. 1993, AT 2 O'CLOCK P.M.
/s/ WILLIAM T. QUILLEN
[SEAL] --------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7078465
DATE: 04-05-96
<PAGE> 13
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP." FILED IN THIS
OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 2 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
****************
/s/ WILLIAM T. QUILLEN
[SEAL] --------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 4181492
DATE: 12/08/1993
<PAGE> 14
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS WBUF LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications WBUF License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 15
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute. The Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 16
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
--------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 17
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS WBUF LICENSE CORP." FILED IN THIS
OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D. 1993, AT 2 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
****************
/s/ WILLIAM T. QUILLEN
[SEAL] --------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 4181503
DATE: 12/08/1993
<PAGE> 18
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS WBUF LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Pyramid Communications WBUF License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, Kent County, Dover,
Delaware 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
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 aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the
<PAGE> 19
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004
SIXTH: in furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 20
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
state of delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 8th day of December, 1993.
/s/ SYLVIA L. ADAMS
--------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.28
AMENDED AND RESTATED
BY-LAWS
OF
WEDR LICENSE CORP.
(f/k/a WSJZ LICENSE CORP.)
(f/k/a PYRAMID COMMUNICATIONS WBUF LICENSE CORP.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
9
<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meeting of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
11
<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
12
<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
WSJZ License Corp., a Delaware corporation; and
(2) That the foregoing Amended and Restated By-Laws, comprising sixteen
pages, constitute the By-Laws of said corporation as duly adopted and approved
by the Board of Directors, of said corporation as of January 17, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 17th day of
January, 1996.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.29
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP", CHANGING ITS
NAME FROM "EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP" TO "CHANCELLOR
MEDIA OF HOUSTON LIMITED PARTNERSHIP", FILED IN THIS OFFICE ON THE TWENTIETH
DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8713010
DATE: 10-21-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED PARTNERSHIP
OF
EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP
It is hereby certified that:
FIRST: The name of the limited partnership (hereinafter called the
"partnership") is:
Evergreen Media of Houston Limited Partnership
SECOND: Pursuant to provisions of Section 17-202, Title 6, Delaware
Code, the Certificate of Limited Partnership is amended as follows:
The new name of the partnership is:
CHANCELLOR MEDIA OF HOUSTON LIMITED PARTNERSHIP
The undersigned, a general partner of the partnership, executed this
Certificate of Amendment on 17 of October, 1997.
By: EVERGREEN MEDIA CORPORATION OF
HOUSTON, General Partner
By: /s/ OMAR CHOUCAIR
-----------------------------------
Name: Omar Choucair
Title: Vice President
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 10/20/1997
971354394 - 2338643
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP", FILED
IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF MAY, A.D. 1993, AT 4:30 O'CLOCK P.M.
* * * * * * * * * * * * * * * * *
[SEAL]
/s/ WILLIAM T. QUILLEN
----------------------------------------
William T. Quillen, Secretary of State
[SEAL]
AUTHENTICATION: *3931147
DATE: 06/10/1993
<PAGE> 4
CERTIFICATE OF LIMITED PARTNERSHIP
OF
EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17,
does hereby certify as follows:
I. The name of the limited partnership is Evergreen Media of
Houston Limited Partnership.
II. The address of the Partnership's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County
of New Castle. The name of the Partnership's registered agent for service of
process in the State of Delaware at such address is The Corporation Trust
Company.
III. The name and mailing address of the sole general partner is as
follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Evergreen Media Corporation 433 E. Las Colinas Blvd.
of Houston Suite 1130
Irving, TX 75039
</TABLE>
<PAGE> 5
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of Evergreen Media of Houston Limited Partnership as of
this 24 day of May, 1993.
EVERGREEN MEDIA CORPORATION
OF HOUSTON, a Delaware
corporation, Sole General Partner
By: /s/ SCOTT K. GINSBURG
-------------------------------
Scott K. Ginsburg, President
2
<PAGE> 6
CONSENT
Evergreen Media Corporation of Houston, a Delaware corporation, hereby
consents to the use of the name, "EVERGREEN MEDIA OF HOUSTON LIMITED
PARTNERSHIP" in Delaware by its affiliate, Evergreen Media of Houston Limited
Partnership.
Date: May 28, 1993
EVERGREEN MEDIA CORPORATION OF HOUSTON,
a Delaware corporation
By: /s/ SCOTT K. GINSBURG
----------------------------
Scott K. Ginsburg
President
<PAGE> 7
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP" FILED
IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF MAY, A.D. 1993, AT 4:30 O'CLOCK P.M.
* * * * * * * * * *
[SEAL] /s/ WILLIAM T. QUILLEN
--------------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3920407
DATE: 06/02/1993
<PAGE> 8
CERTIFICATE OF LIMITED PARTNERSHIP
OF
EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17,
does hereby certify as follows:
I. The name of the limited partnership is Evergreen Media of Houston
Limited Partnership.
II. The address of the Partnership's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The name of the Partnership's registered agent for service of
process in the State of Delaware at such address is The Corporation Trust
Company.
III. The name and mailing address of the sole general partner is as
follows:
NAME MAILING ADDRESS
---- ---------------
Evergreen Media Corporation 433 E. Las Colinas Blvd.
of Houston Suite 1130
Irving, TX 75039
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 05/28/1993
931525417 - 2338643
<PAGE> 9
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of Evergreen Media of Houston Limited Partnership as of
this 24 day of May, 1993.
EVERGREEN MEDIA CORPORATION
OF HOUSTON, a Delaware
corporation, Sole General Partner
By: /s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, President
2
<PAGE> 10
------------------------------------------------------------
CHANCELLOR MEDIA OF HOUSTON LIMITED PARTNERSHIP
(Formerly: EVERGREEN MEDIA OF HOUSTON LIMITED PARTNERSHIP)
(A Delaware Limited Partnership)
AGREEMENT OF LIMITED PARTNERSHIP
------------------------------------------------------------
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.
SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT
ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
<PAGE> 11
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership (the "Agreement") has been made as
of this 24th day of May, 1993 at the offices of Latham & Watkins, Washington,
D.C., by and between Evergreen Media Corporation of Houston, a Delaware
corporation, whose address is 510 Lovett Boulevard, Houston, Texas 77006 (the
"General Partner") and Evergreen Media Corporation of San Francisco, a Delaware
corporation, whose address is 55 Francisco Street, San Francisco, California
94133 (the "Limited Partner").
ARTICLE ONE
THE PARTNERSHIP
1.01. Name. The name of the partnership shall be EVERGREEN MEDIA OF
HOUSTON LIMITED PARTNERSHIP, and such name shall be used at all times in
connection with Partnership business and affairs.
1.02. Purpose. The purpose and business of the Partnership shall be to
acquire, own and operate commercial radio stations in Houston, Texas, and in
such other places as the Partnership may determine (the "Stations"). Without
limiting the generality of the foregoing, the Partnership, through its General
Partner, is specifically authorized to acquire the assets used or useful in the
operation of Radio Stations KLOL(FM) and KTRH(AM), Houston, Texas.
1.03. Office and Agent for Service of Process. The principal office and
place of business of the Partnership shall be at 510 Lovett Boulevard, Houston,
Texas 77006. The agent for service of process shall be The Corporation Trust
Company with an address at 7209 Orange Street, Wilmington, Delaware 19801.
<PAGE> 12
1.04. Certificate. Promptly after the execution of this Agreement, the
General Partner shall execute, acknowledge, and file or cause to be filed with
the Secretary of State of the State of Delaware a Certificate of Limited
Partnership.
1.05. Term. The Partnership shall continue until the occurrence of an act
or event specified in this Agreement or by law as one effecting dissolution.
ARTICLE TWO
FINANCE
2.01. Partnership Shares. For purposes of this Agreement, the Partners'
respective Partnership Shares shall be as follows:
(a) General Partner:
Evergreen Media Corporation
of Houston 1%
(b) Limited Partner:
Evergreen Media Corporation
of San Francisco 99%
The Partnership Shares shall remain at the percentages specified above unless
changed by reappointment or assignment as provided in this Agreement or by
amendment to this Agreement.
The Partners shall acquire their shares in the partnership identified in
this Section 2.01 by making capital contributions as follows:
Evergreen Media Corporation
of Houston $ 1
Evergreen Media Corporation
of San Francisco $99
2
<PAGE> 13
2.02. Calls for Additional Capital. The General Partner may at any time
issue a call for additional capital contributions from the Partners. Such
contributions shall be made pro rata based upon the then-current Partnership
Shares. All capital contributions required to be made pursuant to this
subsection shall be remitted to the Partnership within fifteen (15) days
following notice from the General Partner of the capital call. The General
Partner may make capital calls for the purpose of repaying any indebtedness of
the Partnership incurred in any "Station Transaction." A "Station Transaction"
means the purchase or sale by, and assignment to or from, the Partnership of
substantially all of the assets of a broadcast station licensed by the Federal
Communications Commission, or the transfer to or from the Partnership of a
controlling interest in a person that is the licensee of a Station.
2.03. Capital Accounts. A capital account shall be established for each
Partner which shall reflect (a) all capital contributions made by such Partner
to the Partnership; (b) all items of Partnership income and gain allocated to
such Partner; (c) all distributions made to or on behalf of such Partner; and
(d) all items of Partnership cost, expense, loss, and deduction allocated to
such Partner. Each capital account shall be maintained in a manner
corresponding to the capital of the Partners as reported on the federal income
tax returns of the Partnership. The respective capital accounts of the Partners
shall not bear interest. Each Partner hereby waives any right to demand the
return of a capital contribution.
2.04. Allocation of Profits and Losses. All net profits, net losses,
deductions, and credits shall be allocated to the Partners in accordance with
their respective Partnership Shares. The General Partner may make such
additional allocations as may be necessary to meet the requirements of Section
704 of the Internal Revenue Code of 1986 and the regulations promulgated
thereunder (the "Code").
3
<PAGE> 14
2.05. Cash Distributions. Cash distributions during the term of the
Partnership shall be made at such times and in such amounts as the General
Partner shall determine in its discretion. Such distributions shall be made to
the Partners in accordance with their respective Partnership Shares.
2.06. Partnership Funds. All funds of the Partnership shall be deposited
in its name in such bank account or accounts, or invested in such
interest-bearing investments, as shall be determined by the General Partner in
its discretion. All withdrawals of funds shall be made by check or order signed
by an officer of the General Partner or by an agent or agents designated by the
General Partner from time to time. Partnership funds shall not be commingled
with those of any other person or entity.
2.07. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
2.08. Income Tax Elections. All elections required or permitted to be made
by the Partnership under the Code shall be made by the General Partner in such
a manner that such elections, in its judgment, will be most advantageous to the
Partners. Each Partner will upon request supply the information necessary to
give effect to any such election.
ARTICLE THREE
BOOKS AND RECORDS
3.01. Accounting. The General Partner shall keep proper and complete books
of account in which shall be entered fully and accurately all transactions and
other matters relative to the Partnership's business and as are usually entered
into books of account maintained by persons engaged in the radio broadcasting
business. The Partnership's books of account shall be kept using a method of
accounting selected by the General Partner and maintained as required for
federal income tax purposes.
4
<PAGE> 15
3.02. Partnership Records. The Partnership's books and records shall be
kept at the Partnership's office where they shall be available for reasonable
inspection or examination by the Partners or their duly authorized
representatives during normal business hours.
ARTICLE FOUR
MANAGEMENT AND OPERATIONS
4.01. Management Generally. The General Partner shall have full and
exclusive power and authority to manage, control, administer and operate the
business and affairs of the Partnership, and to do or cause to be done any and
all acts deemed by the General Partner to be necessary or appropriate thereto,
and the scope of such power and authority shall encompass all matters in any
way connected with such business. Except as specifically provided in this
Agreement, the General Partner shall manage the Partnership. Notwithstanding
the foregoing, every contract, deed, mortgage, lease and other instrument
executed by the General Partner shall be conclusive evidence in favor of every
person or entity relying thereon or claiming thereunder that, at the time of
the delivery thereof, (a) the Partnership was in existence, and (b) the
execution and delivery thereof was duly authorized. Without limiting the
generality of the forgoing, the General Partner (acting through its duly
authorized officers) is specifically to cause the Partnership to enter into any
agreement required under Senior Secured Credit Facilities dated November 6,
1992 for Evergreen Media Corporation of Los Angeles from Various Lending
Institutions (the "Banks") Some of Which are also Acting as Co-Agents (the
"Co-Agents"), with Toronto Dominion (Texas), Inc. as Agent for the Co-Agents
and the Banks.
5
<PAGE> 16
4.02. Expenses of General Partner. The General Partner shall be
entitled to charge the Partnership, and to be reimbursed by it, for any and all
reasonable costs and expenses incurred by the General Partner in connection with
the operation of the Partnership's business.
4.03. Limitations on Limited Partners. A Limited Partner shall not
participate in the management or control of the Partnership, engage in any
activity which creates the potential for control of the Partnership, transact
any business on behalf of the Partnership, or have any power to act for or bind
the Partnership.
4.04. Dealings Outside the Partnership. No Partner shall engage in any
conduct which would impair the Partnership's qualifications to be an FCC
licensee.
ARTICLE FIVE
LIABILITY OF PARTNERS
5.01. Liability of General Partner. The General Partner shall not be
liable in damages or otherwise to the Partnership or any Partner for any action
taken or failure to act on behalf of the Partnership within the scope of the
authority conferred on the General Partner by this Agreement unless such act or
omission was performed or omitted fraudulently. In no event shall the General
Partner be liable for any loss or damage to Partnership property caused by acts
of a public enemy, natural disasters, or other causes beyond the General
Partner's control.
5.02. Liability of Limited Partners. No Limited Partner shall have any
personal liability, whether to the Partnership, to any of the Partners, or to
the creditors of the Partnership for the debts of the Partnership beyond the
amounts required to be contributed by it to the capital of the Partnership
pursuant to this Agreement.
6
<PAGE> 17
ARTICLE SIX
ADDITION AND WITHDRAWAL OF PARTNERS
6.01. Addition of Partners. No additional partners may be admitted to
the Partnership without the consent of all the Partners. The addition of a
general partner shall be subject to any necessary prior consent of the FCC.
6.02. Withdrawal of Partners. The General Partner may not withdraw
from the Partnership or transfer its interest in the Partnership without the
prior consent of the Partners.
6.03. Transfer of Partnership Interests. No Partnership Interest may
be transferred without the unanimous consent of all the Partners.
ARTICLE SEVEN
DISSOLUTION AND WINDING-UP
7.01. Events of Dissolution. The Partnership shall be dissolved:
(a) If the General Partner withdraws from the Partnership or there
otherwise ceases to be a General Partner;
(b) Upon the death, insanity, bankruptcy, retirement, resignation, or
withdrawal of the General Partner; provide, however, that all remaining Partners
may agree to continue the Partnership upon a unanimous vote;
(c) Upon the mutual consent of all of the Partners;
(d) Upon the entry of a decree of judicial dissolution; or
(e) In any event, at 11:59 p.m. on December 31, 2020.
The Partnership shall continue to exist following December 31, 2020, or
following the earlier happening of any of the foregoing events, solely for the
purpose of winding up its affairs.
7
<PAGE> 18
7.02. Final Accounting. Following the dissolution of the Partnership,
a proper accounting shall be made of the accounts of the Partnership, of each
Partner and of the Partnership's assets, liabilities and operations from the
date of the last previous accounting to the date of such dissolution.
7.03. Liquidating Trustee. Upon dissolution of the Partnership, the
General Partner (or, in the event of dissolution under Section 7.01(a), an agent
appointed by the remaining Partners) shall file a certificate of dissolution and
shall proceed diligently to wind up the affairs of the Partnership and
distribute its assets as liquidating trustee. During the interim, the
liquidating trustee shall continue to exploit the rights and properties of the
Partnership consistent with the liquidation thereof and each Partner shall
continue to share profits and losses as provided in this Agreement. In
connection with winding up the affairs of the Partnership, the liquidating
trustee may sell all properties owned by the Partnership at public or private
sale upon such terms and conditions as the liquidating trustee deems advisable.
7.04. Liquidation and Distribution. The net proceeds received by the
liquidating trustee upon the sale of the properties of the Partnership, if any,
and any remaining assets of the Partnership shall be applied and distributed in
cash or in kind in the following order of priority:
(a) To the payment of all debts, obligations, and liabilities of the
Partnership and the expenses of liquidation;
(b) To the establishment of any reserves which the liquidating trustee
may deem necessary for any contingent or unforeseen obligations or liabilities
of the Partnership, including, without limitation, payment of such reserves over
to a person, as escrow agent, to be held by such person for the purpose of
disbursing such reserves, and, upon the expiration
8
<PAGE> 19
of such period determined by the liquidating trustee to distribute the balance
as provided in this subsection:
(c) To the Partners in an amount sufficient to pay the remaining credit
balances, if any, of their respective capital accounts; provided, however, that
any Partner having a negative balance in his or its capital account shall,
prior to receiving any assets of the Partnership pursuant to this subsection
elect (i) to forego distributions of assets having a fair market value equal to
the negative balance; or (ii) to contribute cash in an amount equal to such
negative balance; or (iii) some combination of (i) and (ii).
(d) To the Partners in accordance with their respective Partnership Shares.
7.05. Termination. Upon completion of the liquidation of the Partnership
and the distribution of all funds of the Partnership, the liquidating trustee
shall execute and record a certificate of cancellation and the Partnership
shall terminate.
ARTICLE EIGHT
MISCELLANEOUS
8.01. Notices. Any and all notices permitted or required to be given under
this Agreement shall be in writing, signed by the Partner giving such notice,
and shall be delivered personally, or sent by registered or certified mail, to
the other Partners, at their address set forth in the preamble, or at such
other address as may be supplied in writing. The date of personal delivery or
the date of mailing, as the case may be, shall be the date of such notice.
8.02. Successors and Assigns. This Agreement, and each and every provision
hereof, shall be binding upon and shall inure to the benefit of the Partners,
their respective successors and assigns, and each Partner agrees, on behalf of
itself, its successors and assigns, to execute any instruments which may be
necessary and appropriate to carry out and
9
<PAGE> 20
execute the purpose and intentions of this Agreement, and hereby authorizes and
directs its successors and assigns to execute any and all such instruments.
Each and every successor-in-interest to any Partner, whether such successor
acquired such interest by way of gift, purchase, foreclosure, or by any other
method, shall hold such interest subject to all of the terms and provisions of
this Agreement.
8.03. Amendment. No change, modification or amendment of this Agreement
shall be valid or binding upon the Partners unless all Partners affirmatively
vote in favor of such change, modification or amendment.
8.04. No Waiver. The failure of any Partner to insist upon strict
performance of a covenant hereunder or of any obligation hereunder shall not be
a waiver of such Partner's right to demand strict compliance therewith in the
future.
8.05. Integration. This Agreement constitutes the full and complete
agreement of the Partners.
8.06. Captions. Titles or captions of articles and sections contained
in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
8.07. Number and Gender. Whenever required by the context, the singular
number shall include the plural and the masculine or neuter gender shall
include all genders.
8.08. Counterparts. This Agreement may be executed in multiple copies,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
8.09. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
10
<PAGE> 21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GENERAL PARTNER:
EVERGREEN MEDIA CORPORATION OF HOUSTON
By: /s/ SCOTT K. GINSBURG
-------------------------------------
Scott K. Ginsburg, President
LIMITED PARTNER:
EVERGREEN MEDIA CORPORATION OF
SAN FRANCISCO
By: /s/ SCOTT K. GINSBURG
-------------------------------------
Scott K. Ginsburg, President
11
<PAGE> 1
EXHIBIT 3.30
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF HOUSTON", CHANGING ITS NAME FROM "EVERGREEN
MEDIA CORPORATION OF HOUSTON" TO "CHANCELLOR MEDIA CORPORATION OF HOUSTON",
FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997, AT 4:30
O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8709746
[SEAL] DATE: 10/20/97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF HOUSTON
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of Houston (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF HOUSTON"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF HOUSTON,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
Attention: Delaware Secretary of State
Re: Consent to Use of Name
Chancellor Media Corporation of Houston ("Corporation"), a
Delaware corporation and general partner of Evergreen Media of Houston Limited
Partnership, hereby consents to the filing of the Certificate of Amendment to
the Certificate of Limited Partnership of Evergreen Media of Houston Limited
Partnership authorizing the changing of its name to:
CHANCELLOR MEDIA OF HOUSTON LIMITED PARTNERSHIP.
IN WITNESS WHEREOF, the Corporation has caused this consent to be
executed by Omar Choucair, its Vice President, on this 21st day of October,
1997.
Chancellor Media Corporation of Houston
By: /s/ OMAR CHOUCAIR
-----------------------------------------
Omar Choucair, Vice President
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF HOUSTON" FILED IN THIS OFFICE
ON THE ELEVENTH DAY OF FEBRUARY, A.D. 1993, AT 1 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
[SEAL] ---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3931141
DATE: 06/10/1993
<PAGE> 5
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF HOUSTON
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
EVERGREEN MEDIA CORPORATION OF HOUSTON
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 6
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 7
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 11th day of February, 1993.
/s/ SYLVIA L. ADAMS
--------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 8
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF HOUSTON" FILED IN THIS OFFICE
ON THE ELEVENTH DAY OF FEBRUARY, A.D. 1993, AT 1 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
[SEAL] --------------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3783017
DATE: 02/11/1993
<PAGE> 9
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF HOUSTON
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Evergreen Media Corporation of Houston
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 10
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
2
<PAGE> 11
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 11th day of February, 1993.
/s/ SYLVIA L. ADAMS
---------------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.31
BY-LAWS
OF
CHANCELLOR MEDIA CORPORATION OF HOUSTON
(FORMERLY, EVERGREEN MEDIA CORPORATION OF HOUSTON)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends' Directors Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
1
<PAGE> 5
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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
3
<PAGE> 7
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
4
<PAGE> 8
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
5
<PAGE> 9
telegram; special meetings shall be called by the President or the Secretary in
like manner and in like manner and on like notice on the written request of two
directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
7
<PAGE> 11
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or
8
<PAGE> 12
other similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person unless the Certificate of Incorporation
or these By-Laws otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
9
<PAGE> 13
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 stockholders 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 an
ex-officio member of all committees and shall have the general powers and duties
of management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
10
<PAGE> 14
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
11
<PAGE> 15
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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
12
<PAGE> 16
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
13
<PAGE> 17
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to another action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
14
<PAGE> 18
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
15
<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of Houston, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
February 12, 1993.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 12th day of
February, 1993.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.32
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF PHILADELPHIA", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE TENTH DAY OF AUGUST, A.D. 1998, AT 2 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9244162
[SEAL] DATE: 08-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF PHILADELPHIA
INTO
CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of Philadelphia Delaware
Chancellor Media Corporation of the Keystone State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Keystone State.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
the Keystone State shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of
<PAGE> 3
business of the surviving corporation is 433 E. Las Colinas Blvd., Suite 1130,
Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
2
<PAGE> 4
Dated: August 10 , 1998
----------------------
CHANCELLOR MEDIA CORPORATION OF
THE KEYSTONE STATE
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 5
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF PENNSYLVANIA", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE THIRTY-FIRST DAY OF JULY, A.D. 1998, AT 11 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9229047
[SEAL] DATE: 07-31-98
<PAGE> 6
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF PENNSYLVANIA
INTO
CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of Pennsylvania Delaware
Chancellor Media Corporation of the Keystone State Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Keystone State.
FOURTH: The Certificate of Incorporation of Chancellor Media Corporation of
the Keystone State shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of
<PAGE> 7
business of the surviving corporation is 433 E. Las Colinas Blvd., Suite 1130,
Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
2
<PAGE> 8
Dated: July 31 , 1998
----------------------
CHANCELLOR MEDIA CORPORATION OF
THE KEYSTONE STATE
By: /s/ ANDREA HULCY
-----------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
3
<PAGE> 9
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE" TO "CHANCELLOR MEDIA
CORPORATION OF THE KEYSTONE STATE", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY
OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8709784
[SEAL] DATE: 10-20-97
<PAGE> 10
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of Massachusetts (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF THE KEYSTONE STATE"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF THE KEYSTONE STATE,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 11
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THAT THE SAID "EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA", FILED A
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME TO "EVERGREEN MEDIA CORPORATION OF
THE KEYSTONE STATE", THE TWELFTH DAY OF JUNE, A.D. 1997, AT 12 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8509152
[SEAL] DATE: 06-12-97
<PAGE> 12
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA" TO "EVERGREEN MEDIA CORPORATION
OF THE KEYSTONE STATE", FILED IN THIS OFFICE ON THE TWELFTH DAY OF JUNE, A.D.
1997, AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8509116
[SEAL] DATE: 06-12-97
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of North Carolina (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment
to be signed and executed in its corporate name by Omar Choucair, its Vice
President, on this 12th day of June, 1997.
EVERGREEN MEDIA CORPORATION OF
NORTH CAROLINA,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 14
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE" IS DULY INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL
CORPORATE EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE TWELFTH
DAY OF JUNE, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8509151
[SEAL] DATE: 06-12-97
<PAGE> 15
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"EVERGREEN MEDIA CORPORATION OF CAROLINALAND", A DELAWARE CORPORATION,
WITH AND INTO "EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA" UNDER THE
NAME OF "EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE TWELFTH DAY MAY, A.D. 1997, AT 1 O'CLOCK P. M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8460906
[SEAL] DATE: 05-12-97
<PAGE> 16
CERTIFICATE OF MERGER
OF
EVERGREEN MEDIA CORPORATION OF CAROLINALAND
INTO
EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA
The undersigned corporation, organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Evergreen Media Corporation of North Carolina Delaware
Evergreen Media Corporation of Carolinaland Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Evergreen Media
Corporation of North Carolina.
FOURTH: The Certificate of Incorporation of Evergreen Media Corporation of
North Carolina, as amended hereby, shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law. The first sentence of Article
FOURTH of the Certificate of Incorporation shall be deleted in its entirety and
replaced with the following:
"The aggregate number of all classes and shares which the Corporation shall
have authority to issue is one thousand one hundred (1,100) shares of
common stock with par value of $.01 per share."
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 17
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished by
the surviving corporation on request and without cost to any stockholder of any
constituent corporation.
Dated: May 12 ,1998
----------------------
EVERGREEN MEDIA CORPORATION
OF NORTH CAROLINA
By: /s/ MATHEW E. DEVINE
-----------------------------------------
Mathew E. Devine
Vice President
2
<PAGE> 18
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PYRAMID COMMUNICATIONS-CHARLOTTE, INC.", CHANGING ITS NAME FROM "PYRAMID
COMMUNICATIONS-CHARLOTTE, INC." TO "EVERGREEN MEDIA CORPORATION OF NORTH
CAROLINA", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF JANUARY, A.D. 1996, AT
4 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7793142
[SEAL] DATE: 01-17-96
<PAGE> 19
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS OF-CHARLOTTE, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Pyramid Communications-Charlotte, Inc, (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA"
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 17th day of January, 1996.
PYRAMID COMMUNICATIONS-
CHARLOTTE, INC.,
a Delaware corporation
By: /s/ MATTHEW E. DEVINE
---------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 20
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PYRAMID COMMUNICATIONS -CHARLOTTE." FILED IN THIS OFFICE ON
THE TWENTY-SECOND DAY OF NOVEMBER, A.D. 1993, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * * *
/s/ WILLIAM T. QUILLEN
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *4158761
[SEAL] DATE: 11/22/1993
<PAGE> 21
CERTIFICATE OF INCORPORATION
OF
PYRAMID COMMUNICATIONS-CHARLOTTE, INC.
The undersigned, in order to form a corporation for the purpose
hereinafter stated, under and pursuant to the provisions of the Delaware General
Corporation Law, hereby certifies that:
1. The name of the Corporation is Pyramid Communications-Charlotte, Inc.
2. The registered office and registered agent of the Corporation is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801.
3. 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.
4. The total number of shares of stock that the Corporation is authorized
to issue is 1,000 shares of Common Stock, par value $.01 per share.
5. The name and address of the incorporator is Kuang-Hsiang Lin, 425
Lexington Avenue, New York City, New York 10017.
6. The Board of Directors of the Corporation, acting by majority vote, may
alter, amend or repeal the By-Laws of the Corporation.
7. Except as otherwise provided by the Delaware General Corporation Law as
the same exists or may hereafter by amended, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any repeal or modification
of this Article SEVENTH by the stockholders of the Corporation shall not
adversely affect any right of protection of a director of the Corporation
existing at the time of such repeal or modification.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Incorporation on November 18, 1993.
/s/ KUANG-HSIANG LIN
-----------------------------------
Kuang-Hsiang Lin
Sole Incorporator
<PAGE> 1
EXHIBIT 3.33
AMENDED AND RESTATED
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF THE KEYSTONE STATE
(F.K.A. EVERGREEN MEDIA CORPORATION OF NORTH CAROLINA)
(f/k/a PYRAMID COMMUNICATIONS - CHARLOTTE, INC.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in Office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
9
<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meeting of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
11
<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
12
<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
Evergreen Media Corporation of North Carolina, a Delaware corporation; and
(2) That the foregoing Amended and Restated By-Laws, comprising sixteen
pages, constitute the By-Laws of said corporation as duly adopted and approved
by the Board of Directors, of said corporation as of January 17, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 17th day of
January, 1996.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.34
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA CORPORATION OF NEW YORK", FILED IN THIS
OFFICE ON THE THIRTIETH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9228957
DATE: 07-31-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA CORPORATION OF NEW YORK
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Chancellor Media Corporation of New York
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or
<PAGE> 3
sale of any such shares or securities, the Board of Directors of the Corporation
may, in its sole discretion, offer such shares or securities, or any part
thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each bolder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Jane C. Serena
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 30th day of July, 1998.
/s/ JANE C. SERENA
--------------------------------------
Jane C. Serena
Incorporator
<PAGE> 1
EXHIBIT 3.35
BY-LAWS
OF
CHANCELLOR MEDIA CORPORATION OF NEW YORK
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I. OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholders' Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 8
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 8
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 10. Assistant Secretary . . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE V. CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 13
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 13
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Payment of Dividends; Directors' Duties . . . . . . . . . . . . 15
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 16
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 7
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 8
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 10
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 11
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 13
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 14
President. The Vice Presidents shall have such other duties as from time to
time may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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
11
<PAGE> 15
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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 16
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 17
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by the
laws of the State of Delaware.
14
<PAGE> 18
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
15
<PAGE> 19
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Assistant Secretary of
Chancellor Media Corporation of New York, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
July 30, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
July, 1998.
/s/ ANDREA HULCY
---------------------------------
Andrea Hulcy, Assistant Secretary
17
<PAGE> 1
EXHIBIT. 3.36
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVERGREEN MEDIA CORPORATION OF CHARLOTTE", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF CHARLOTTE" TO "CHANCELLOR MEDIA CORPORATION OF
CHARLOTTE", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997,
AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8710098
DATE: 10-20-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF CHARLOTTE
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Evergreen Media Corporation of Charlotte (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in lieu
thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF CHARLOTTE"
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17th day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF CHARLOTTE,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
---------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "BROADCASTING PARTNERS OF CHARLOTTE, INC.", CHANGING ITS NAME
FROM "BROADCASTING PARTNERS OF CHARLOTTE, INC." TO "EVERGREEN MEDIA CORPORATION
OF CHARLOTTE", FILED IN THIS OFFICE ON THE TWELFTH DAY OF MAY, A.D. 1995, AT
4:21 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
---------------------------------------
Edward J. Freel, Secretary of State
[SEAL] AUTHENTICATION: 7504899
DATE: 05-12-95
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BROADCASTING PARTNERS OF CHARLOTTE, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Broadcasting Partners of Charlotte, Inc. (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"Evergreen Media Corporation of Charlotte"
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 12th day of May, 1995.
BROADCASTING PARTNERS OF CHARLOTTE, INC.,
a Delaware corporation
By /s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 5
CERTIFICATE OF INCORPORATION
OF
BROADCASTING PARTNERS OF CHARLOTTE, INC.
* * * * *
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the Corporation is:
BROADCASTING PARTNERS OF CHARLOTTE, INC.
SECOND: Its registered office is to be located at Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware.
The name of its registered agent at such 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 now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is one thousand (1,000) shares of Common Stock, $.01 par
value.
FIFTH: The name and mailing address of the single incorporator is:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
John Francis Fitzpatrick 1 Chase Manhattan Plaza
New York, New York 10005
</TABLE>
The power of the incorporator as such shall terminate upon the filing of this
Certificate of Incorporation.
SIXTH: The Board of Directors shall have the power to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH: Election of directors need not be by ballot unless the By-Laws
of the Corporation so provide.
<PAGE> 6
EIGHTH: The Corporation shall, to the extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person whom it may indemnify pursuant thereto. A Director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the Delaware Corporation Law as the same exists or may
hereafter be amended. No repeal or modification of this Article nor, to the
fullest extent permitted by law, any modification of law, shall adversely
affect any right or protection of a Director of the Corporation existing at the
time of such repeal or modification.
NINTH: Each person who is or was a director or officer of the
Corporation (and the heirs, executors or administrators of such person) who was
or is made a party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
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,
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable
law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall also include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition to the fullest extent authorized by
applicable law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall be a contract right.
The Corporation may, by action of its board of directors, provide
indemnification to such of the employees and agents of the Corporation to such
extent and to such effect as the board of directors shall determine to be
appropriate and authorized by applicable law as the same exists or may
hereafter be amended.
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, employee or
agent of the Corporation, or who 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, against any expense,
liability or loss
-2-
<PAGE> 7
incurred by such person in any such capacity, whether or not the Corporation
would have the power to indemnify such person in any such capacity and whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under applicable law as the same exists or may
hereafter be amended.
The rights and authority conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the certificate of incorporation or by-laws of
the Corporation, agreement, vote of stockholders or disinterested directors or
otherwise.
TENTH: The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Incorporation in any
manner permitted by the General Corporation Law of the State of Delaware, as
amended from time to time, and all rights and powers conferred herein on
stockholders, directors and officers, if any, are subject to this reserved
power.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th day of
June, 1988.
/s/ JOHN FRANCIS FITZPATRICK
--------------------------------
John Francis Fitzpatrick
-3-
<PAGE> 8
BOOK 728 PAGE 123 PAGE 1
STATE OF DELAWARE
[LOGO]
OFFICE OF SECRETARY OF STATE
---------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF BROADCASTING PARTNERS OF CHARLOTTE, INC. FILED IN THIS OFFICE
ON THE TWENTY-FIRST DAY OF JUNE, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL] /s/ MICHAEL HARKINS
----------------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1756581
DATE: 06/21/1988
<PAGE> 9
BOOK 728 PAGE 124 FILED
JUN 21 1988
CERTIFICATE OF INCORPORATION
OF
BROADCASTING PARTNERS OF CHARLOTTE, INC.
* * * * *
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the Corporation is:
BROADCASTING PARTNERS OF CHARLOTTE, INC.
SECOND: Its registered office is to be located at Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware.
The name of its registered agent at such 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 now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is one thousand (1,000) shares of Common Stock, $.01 par
value.
FIFTH: The name and mailing address of the single incorporator is:
Name Mailing Address
---- ---------------
John Francis Fitzpatrick 1 Chase Manhattan Plaza
New York, New York 10005
The power of the incorporator as such shall terminate upon the filing of this
Certificate of Incorporation.
SIXTH: The Board of Directors shall have the power to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH: Election of directors need not be by ballot unless the By-Laws
of the Corporation so provide.
<PAGE> 10
BOOK 728 PAGE 125
EIGHTH: The Corporation shall, to the extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person whom it may indemnify pursuant thereto. A Director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the Delaware Corporation Law as the same exists or may
hereafter be amended. No repeal or modification of this Article nor, to the
fullest extent permitted by law, any modification of law, shall adversely
affect any right or protection of a Director of the Corporation existing at the
time of such repeal or modification.
NINTH: Each person who is or was a director or officer of the
Corporation (and the heirs, executors or administrators of such person) who was
or is made a party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
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,
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable
law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall also include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition to the fullest extent authorized by
applicable law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall be a contract right.
The Corporation may, by action of its board of directors, provide
indemnification to such of the employees and agents of the Corporation to such
extent and to such effect as the board of directors shall determine to be
appropriate and authorized by applicable law as the same exists or may
hereafter be amended.
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, employee or
agent of the Corporation, or who 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, against any expense,
liability or loss
-2-
<PAGE> 11
BOOK 728 PAGE 126
incurred by such person in any such capacity, whether or not the Corporation
would have the power to indemnify such person in any such capacity and whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under applicable law as the same exists or may
hereafter be amended.
The rights and authority conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the certificate of incorporation or by-laws of
the Corporation, agreement, vote of stockholders or disinterested directors or
otherwise.
TENTH: The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Incorporation in any
manner permitted by the General Corporation Law of the State of Delaware, as
amended from time to time, and all rights and powers conferred herein on
stockholders, directors and officers, if any, are subject to this reserved
power.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th day of
June, 1988.
RECEIVED FOR RECORDER /s/ JOHN FRANCIS FITZPATRICK
JUN 22 1988 --------------------------------
William M. Honey, Recorder John Francis Fitzpatrick
-3-
<PAGE> 12
PAGE 1
STATE OF DELAWARE
[LOGO]
OFFICE OF SECRETARY OF STATE
------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF BROADCASTING PARTNERS OF CHARLOTTE, INC. FILED IN THIS OFFICE
ON THE TWENTY-FIRST DAY OF JUNE, A.D. 1998, AT 10 O'CLOCK A.M.
[SEAL] /s/ MICHAEL HARKINS
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1756580
DATE: 06/21/1988
<PAGE> 13
CERTIFICATE OF INCORPORATION
OF
BROADCASTING PARTNERS OF CHARLOTTE, INC.
* * * * *
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the Corporation is:
BROADCASTING PARTNERS OF CHARLOTTE, INC.
SECOND: Its registered office is to be located at Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware.
The name of its registered agent at such 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 now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is one thousand (1,000) shares of Common Stock, $.01 par
value.
FIFTH: The name and mailing address of the single incorporator is:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
John Francis Fitzpatrick 1 Chase Manhattan Plaza
New York, New York 10005
</TABLE>
The power of the incorporator as such shall terminate upon the filing of this
Certificate of Incorporation.
SIXTH: The Board of Directors shall have the power to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH: Election of directors need not be by ballot unless the By-Laws
of the Corporation so provide.
<PAGE> 14
EIGHTH: The Corporation shall, to the extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person whom it may indemnify pursuant thereto. A Director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the Delaware Corporation Law as the same exists or may
hereafter be amended. No repeal or modification of this Article nor, to the
fullest extent permitted by law, any modification of law, shall adversely
affect any right or protection of a Director of the Corporation existing at the
time of such repeal or modification.
NINTH: Each person who is or was a director or officer of the
Corporation (and the heirs, executors or administrators of such person) who was
or is made a party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
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,
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable
law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall also include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition to the fullest extent authorized by
applicable law as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall be a contract right.
The Corporation may, by action of its board of directors, provide
indemnification to such of the employees and agents of the Corporation to such
extent and to such effect as the board of directors shall determine to be
appropriate and authorized by applicable law as the same exists or may
hereafter be amended.
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, employee or
agent of the Corporation, or who 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, against any expense,
liability or loss
-2-
<PAGE> 15
incurred by such person in any such capacity, whether or not the Corporation
would have the power to indemnify such person in any such capacity and whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under applicable law as the same exists or may
hereafter be amended.
The rights and authority conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the certificate of incorporation or by-laws of
the Corporation, agreement, vote of stockholders or disinterested directors or
otherwise.
TENTH: The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Incorporation in any
manner permitted by the General Corporation Law of the State of Delaware, as
amended from time to time, and all rights and powers conferred herein on
stockholders, directors and officers, if any, are subject to this reserved
power.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th day of
June, 1988.
/s/ JOHN FRANCIS FITZPATRICK
--------------------------------
John Francis Fitzpatrick
-3-
<PAGE> 1
EXHIBIT 3.37
AMENDED AND RESTATED
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF CHARLOTTE
(f/k/a BROADCASTING PARTNERS OF CHARLOTTE, INC.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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
tune to time assigned to him by the Board of Directors or prescribed by these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
9
<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
11
<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
12
<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
Evergreen Media Corporation of Charlotte, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute
the By-Laws of said corporation as duly adopted and approved by the Board of
Directors, of said corporation as of May 12, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 12th day of
May, 1995.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.38
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WBAV/WBAV-FM/WPEG LICENSE CORP.", CHANGING ITS NAME FROM
"WBAV/WBAV-FM/WPEG LICENSE CORP." TO "WIOQ LICENSE CORP.", FILED IN THIS OFFICE
ON THE TWELFTH DAY OF JUNE, A.D. 1997, AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8510024
DATE: 06-13-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WBAV/WBAV-FM/WPEG LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, WBAV/WBAV-FM/WPEG License Corp. (the "Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in lieu
thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"WIOQ LICENSE CORP."
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 12th day of June, 1997.
WBAV/WBAV-FM/WPEG LICENSE CORP.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
---------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "BPI CHARLOTTE LICENSE SUBSIDIARY, INC.", CHANGING ITS NAME FROM
"BPI CHARLOTTE LICENSE SUBSIDIARY,INC." TO "WBAV/WBAV-FM/WPEG LICENSE CORP.",
FILED IN THIS OFFICE ON THE TWELFTH DAY OF MAY, A.D. 1995, AT 4:26 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7504910
DATE: 05/12/95
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BPI CHARLOTTE LICENSE SUBSIDIARY, INC.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, BPI Charlotte License Subsidiary, Inc. (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is
hereby amended by deleting the present Article FIRST and
inserting in lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter
sometimes referred to as the "Corporation") is:
"WBAV/WBAV-FM/WPEG License Corp."
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Matthew E. Devine,
its assistant secretary, on this 12th day of May, 1995.
BPI CHARLOTTE LICENSE
SUBSIDIARY, INC., a Delaware
corporation
By: /s/ MATTHEW E. DEVINE
---------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 5
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE
OF INCORPORATION OF "BPI CHARLOTTE LICENSE SUBSIDIARY, INC." FILED IN THIS
OFFICE ON THE EIGHTEENTH DAY OF MAY, A.D. 1993, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * **
[SEAL] /s/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3904074
DATE: 05/19/93
<PAGE> 6
DELAWARE
CERTIFICATE OF INCORPORATION
OF
BPI CHARLOTTE LICENSE SUBSIDIARY, 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 BPI CHARLOTTE LICENSE SUBSIDIARY, INC..
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle; and
the name of the registered agent of the corporation in the State of Delaware at
such 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 the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is ten thousand (10,000) shares of common stock with a
par value of $0.01 per share.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
- -------------------------- ------------------------------------
Heidi L. Shales 180 North LaSalle Street
Suite 3400
Chicago, Illinois 60601
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
<PAGE> 7
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 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 this corporation under 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 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 (3/4) 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 Section 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
<PAGE> 8
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 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 Section 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 a director of the corporation is hereby
eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of
Section 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 Section
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.
<PAGE> 9
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.
DATED: May 18, 1993
/s/ HEIDI L. SHALES
--------------------------------
Heidi L. Shales, Incorporator
<PAGE> 10
PREORGANIZATION AGREEMENT FOR
BPI CHARLOTTE LICENSE SUBSIDIARY, INC.
WHEREAS, it is proposed to organize a corporation under the Delaware
General Corporation Act as amended, which shall be known as BPI CHARLOTTE
LICENSE SUBSIDIARY, INC. or such other name as the incorporator may select; and
WHEREAS, BPI CHARLOTTE LICENSE SUBSIDIARY, INC. (hereinafter
"Corporation"), shall be authorized to issue an aggregate of 10,000 shares
consisting of common stock with a par value of $0.01 per share; and
WHEREAS, it is proposed that the purpose for which the Corporation shall
be organized is:
To engage in the transaction of any or all lawful business for which
corporations may be incorporated under the Delaware General
Corporation Act, as amended.
THEREFORE, the undersigned subscribers hereby subscribe for the number of
shares of the Corporation set opposite their names, and agree to pay $0.10 per
share at such time or times as the Board of Directors of the Corporation may
determine. Dated this 17th day of May, 1993.
<TABLE>
<CAPTION>
No. of Shares
Subscribed for Amount
Name and Designation Subscribed
- ---- --------------- ----------
<S> <C> <C>
Broadcasting Partners of 1,000 Common $100.00
Charlotte, Inc.
767 Fifth Avenue, 44th Floor
New York, New York 10153
</TABLE>
Broadcasting Partners of Charlotte, Inc.
By: [sig]
------------------------------------
Its: Secretary
-------------------------------
<PAGE> 11
AUTHENTICATION OF RECORD BOOK AND RECORDS OF
BPI CHARLOTTE LICENSE SUBSIDIARY, INC.
The undersigned, being and constituting the first Board of Directors of
BPI CHARLOTTE LICENSE SUBSIDIARY, INC., a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware and by virtue
of a Certificate of Incorporation issued by the Secretary of State of the State
of Delaware, under the Great Seal of the State of Delaware, on the 18th day of
May, 1993, for the purpose of the adoption and of the identification of this
book, together with the records therein contained, as the Book of Records of
the said Corporation and as the original Record of the organization thereof,
have hereunto subscribed our respective names on this 1st day of June 1993.
/s/ BARRY A. MAYO
------------------------------
Barry A. Mayo
/s/ LEE S. SIMONSON
------------------------------
Lee S. Simonson
/s/ NATHAN W. PEARSON, JR.
------------------------------
Nathan W. Pearson, Jr.
<PAGE> 1
EXHIBIT 3.39
AMENDED AND RESTATED
BY-LAWS
OF
WBAV/WBAV-FM/WPEG LICENSE CORP.
(f/k/a BPI CHARLOTTE LICENSE SUBSIDIARY, INC.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES ....................................................... 1
Section 1. Registered Office ........................................ 1
Section 2. Other Offices ............................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ..................................... 1
Section 1. Place of Meetings ........................................ 1
Section 2. Annual Meeting of Stockholders ........................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ............ 1
Section 4. Voting ................................................... 2
Section 5. Proxies .................................................. 2
Section 6. Special Meetings ......................................... 2
Section 7. Notice of Stockholders' Meetings ......................... 3
Section 8. Maintenance and Inspection of Stockholder List ........... 3
Section 9. Stockholder Action by Written Consent
Without a Meeting ........................................ 4
ARTICLE III - DIRECTORS ................................................... 4
Section 1. The Number of Directors .................................. 4
Section 2. Vacancies ................................................ 4
Section 3. Powers ................................................... 5
Section 4. Place of Directors' Meetings ............................. 5
Section 5. Regular Meetings ......................................... 5
Section 6. Special Meetings ......................................... 6
Section 7. Quorum ................................................... 6
Section 8. Action Without Meeting ................................... 6
Section 9. Telephonic Meetings ...................................... 6
Section 10. Committees of Directors .................................. 7
Section 11. Minutes of Committee Meetings ............................ 7
Section 12. Compensation of Directors ................................ 8
Section 13. Indemnification .......................................... 8
ARTICLE IV - OFFICERS ..................................................... 8
Section 1. Officers ................................................. 8
Section 2. Election of Officers ..................................... 9
Section 3. Subordinate Officers ..................................... 9
Section 4. Compensation of Officers ................................. 9
Section 5. Term of Office; Removal and Vacancies .................... 9
Section 6. Chairman of the Board .................................... 9
Section 7. President ................................................ 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 8. Vice Presidents .......................................... 10
Section 9. Secretary ................................................ 10
Section 10. Assistant Secretary ...................................... 11
Section 11. Treasurer ................................................ 11
Section 12. Assistant Treasurer ...................................... 11
ARTICLE V - CERTIFICATES OF STOCK ......................................... 12
Section 1. Certificates ............................................. 12
Section 2. Signatures on Certificates ............................... 12
Section 3. Statement of Stock Rights, Preferences, Privileges ....... 12
Section 4. Lost Certificates ........................................ 13
Section 5. Transfer of Stock ........................................ 13
Section 6. Fixing Record Date ....................................... 13
Section 7. Registered Stockholders .................................. 14
ARTICLE VI - GENERAL PROVISIONS ........................................... 14
Section 1. Dividends ................................................ 14
Section 2. Payment of Dividends; Directors' Duties .................. 14
Section 3. Checks ................................................... 15
Section 4. Fiscal Year .............................................. 15
Section 5. Corporate Seal ........................................... 15
Section 6. Manner of Giving Notice .................................. 15
Section 7. Waiver of Notice ......................................... 15
Section 8. Annual Statement ......................................... 16
ARTICLE VII - AMENDMENTS .................................................. 16
Section 1. Amendment by Directors or Stockholders ................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request
2
<PAGE> 6
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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 7
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board. The 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, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be
4
<PAGE> 8
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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.
5
<PAGE> 9
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
6
<PAGE> 10
of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the
8
<PAGE> 12
provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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<PAGE> 13
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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
10
<PAGE> 14
by his signature or by the signature of an 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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
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<PAGE> 15
there be no such determination, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
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<PAGE> 16
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 other distribution or allotment of any rights,
13
<PAGE> 17
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 a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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
14
<PAGE> 18
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
15
<PAGE> 19
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Assistant Secretary of
WBAV/WBAV-FM/WPEG License Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute
the By-Laws of said corporation as duly adopted and approved by the Board of
Directors, of said corporation as of May 12, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 12th day of
May, 1995.
/s/ MATTHEW E. DEVINE
--------------------------------------
Matthew E. Devine, Assistant Secretary
17
<PAGE> 1
EXHIBIT 3.40
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.", CHANGING ITS
NAME FROM "EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C." TO "CHANCELLOR
MEDIA CORPORATION OF WASHINGTON, D.C.", FILED IN THIS OFFICE ON THE SEVENTEENTH
DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8710151
DATE: 10-20-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Evergreen Media Corporation of Washington, D.C. (the
"Corporation"), a Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is
hereby amended by deleting the present Article FIRST and
inserting in lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter
sometimes referred to as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF WASHINGTON, D.C."
2. The Sole Director and Sole Shareholder of the
Corporation, by written consent, adopted, approved and
ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF WASHINGTON, D.C.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
---------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C." FILED IN
THIS OFFICE ON THE SEVENTH DAY OF FEBRUARY, A.D. 1992, 4:30 O'CLOCK P.M.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
[SEAL] -------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: 3652027
DATE: 11/06/1992
<PAGE> 4
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Evergreen Media Corporation of Washington, D.C.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or
any rights to subscribe to or purchase such shares, or any securities
convertible into or exchangeable for such shares, which may at any time or from
time to time be issued, sold or offered for sale by the Corporation; provided,
however, that in connection with the issuance or sale of any such shares or
securities, the Board of Directors of the Corporation may, in its sole
discretion, offer such shares or securities, or any part thereof, for purchase
or subscription by
<PAGE> 5
the holders of shares of the Corporation, except as may otherwise be provided
by this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 6
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 7th day of February, 1992.
/s/ SYLVIA L. ADAMS
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 7
PAGE 1
BK 1255 PG 0118
STATE OF DELAWARE
[LOGO]
OFFICE OF SECRETARY OF STATE
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C." FILED IN
THIS OFFICE ON THE SEVENTH DAY OF FEBRUARY, A.D. 1992, AT 4:30 O'CLOCK P.M.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
SECRETARY OF STATE
AUTHENTICATION: *3340723
DATE: 02/10/1992
<PAGE> 8
BK 1255 PG 0119
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 02/07/1992
732038043 - 2287587
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Evergreen Media Corporation of Washington, D.C.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or
any rights to subscribe to or purchase such shares, or any securities
convertible into or exchangeable for such shares, which may at any time or from
time to time be issued, sold or offered for sale by the Corporation; provided,
however, that in connection with the issuance or sale of any such shares or
securities, the Board of Directors of the Corporation may, in its sole
discretion, offer such shares or securities, or any part thereof, for purchase
or subscription by
<PAGE> 9
BK 1255 PG 0120
the holders of shares of the Corporation, except as may otherwise be provided
by this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 10
BK 1255 PG 0121
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 7th day of February, 1992.
/s/ SYLVIA L. ADAMS
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 11
STATE OF DELAWARE
[SEAL]
OFFICE OF SECRETARY OF STATE
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C." FILED IN
THIS OFFICE ON THE SEVENTH DAY OF FEBRUARY, A.D. 1992, 4:30 O'CLOCK P.M.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
SECRETARY OF STATE
AUTHENTICATION: *3340724
DATE: 02/10/1992
<PAGE> 12
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Evergreen Media Corporation of Washington, D.C.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have the authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by
<PAGE> 13
the holders of shares of the Corporation, except as may otherwise be provided
by this Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporation is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 14
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 7th day of February, 1992.
/s/ SYLVIA L. ADAMS
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.41
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF WASHINGTON, D.C.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Notice of Stockholders' Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 6
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 7
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 8
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 8
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 13
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Payment of Dividends; Directors Duties . . . . . . . . . . . . 15
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
2
<PAGE> 6
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the
3
<PAGE> 7
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from
4
<PAGE> 8
the Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorship resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. The directors so
chosen shall hold office until the next annual election of directors and until
their successors are duly elected and shall qualify, unless sooner replaced by a
vote of the shareholders. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of two
directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
6
<PAGE> 10
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such
7
<PAGE> 11
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, the Board of Directors shall have the authority to fix the
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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board of
Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and
such other officers as may be appointed in accordance with the provisions of
Section 3 hereof. In the event there are two or more Vice Presidents, then one
or more may be designated as Executive Vice President, Senior Vice President, or
other similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person unless the Certificate of Incorporation
or these By-Laws otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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
9
<PAGE> 13
Board of Directors. If the office of any officer or officers becomes vacant for
any reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
10
<PAGE> 14
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 Board of Directors, at its regular meetings, or when the
Board of
11
<PAGE> 15
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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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
12
<PAGE> 16
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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 4. 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, 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 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, stolen 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
13
<PAGE> 17
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 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to another action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
14
<PAGE> 18
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given
15
<PAGE> 19
in writing, by mail, addressed to such director or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 7. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of Washington, D.C., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
February 8, 1992.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 8th day of
February, 1992.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.42
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF ST. LOUIS", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF ST. LOUIS" TO "CHANCELLOR MEDIA CORPORATION OF
ST. LOUIS", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997,
AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8710156
DATE: 10-20-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of St. Louis (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in lieu
thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF ST. LOUIS"
2. The Sole Director and Sole Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF ST. LOUIS", FILED IN THIS
OFFICE ON THE TWENTY-FIRST DAY OF SEPTEMBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
-------------------------------------
Michael Ratchford, Secretary of State
[SEAL]
AUTHENTICATION: *3646600
DATE: 11/03/1992
<PAGE> 4
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 09/21/1992
732265022 - 2310175
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Evergreen Media Corporation of St. Louis
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 5
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 6
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 21st day of September, 1992.
/s/ SYLVIA L. ADAMS
-----------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 7
PAGE 1
STATE OF DELAWARE
[SEAL]
OFFICE OF SECRETARY OF STATE
----------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF ST. LOUIS" FILED IN THIS OFFICE
ON THE TWENTY-FIRST DAY OF SEPTEMBER, A.D. 1992, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * *
/s/ MICHAEL RATCHFORD
-------------------------------------
Michael Ratchford, Secretary of State
[SEAL]
732265022 AUTHENTICATION: *3597377
DATE: 09/22/1992
<PAGE> 8
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Evergreen Media Corporation of St. Louis
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 9
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 10
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 21st day of September, 1992.
/s/ SYLVIA L. ADAMS
-----------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 11
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Evergreen Media Corporation of St. Louis
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 12
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 13
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 21st day of September, 1992.
/s/ SYLVIA L. ADAMS
-----------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.43
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF ST. LOUIS
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
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ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Dover, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware 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. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without
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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. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors
as provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of
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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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
notice shall state 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. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. 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 entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 9. Unless otherwise provided in the Certificate of Incorporation,
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 such 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.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board
shall be not less than one (1) and not more than five (5). The exact number of
directors shall be determined by resolution of the Board, and the initial
number of directors shall be one (1). The 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, and each director elected
shall hold office until his successor is elected and qualified; provided,
however, that unless otherwise restricted by the Certificate of Incorporation
or by law, any director or the entire Board of Directors may be removed, either
with or without cause, from the Board of Directors at any meeting of
stockholders by a majority of the stock represented and entitled to vote
thereat.
Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships
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resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. The directors so chosen shall hold office until
the next annual election of directors and until their successors are duly
elected and shall qualify, unless sooner replaced by a vote of the
shareholders. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of
Delaware.
Section 5. 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 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or
by mail or by
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telegram; special meetings shall be called by the President or the Secretary in
like manner and on like notice on the written request of two directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate 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, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, 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 such meeting.
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Section 10. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each such committee to
consist of one 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 a member of a committee, 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 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 to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
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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. The Corporation shall indemnify every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or,
while a director or officer or employee of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions
of Section 3 hereof. In the event there are two or more Vice Presidents, then
one or more may be designated as Executive Vice President, Senior Vice
President, or
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other similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person unless the Certificate of Incorporation
or these By-Laws otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
Section 3. 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 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 in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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
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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 stockholders 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 an
ex-officio member of all committees and shall have the general powers and duties
of management usually vested in the office of President and Chief Executive
Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
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Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise
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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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the 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.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the
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Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 4. 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, 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 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, stolen 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, stolen or destroyed.
Section 5. 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, assignation or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine 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 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 a record date which
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shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to another action. 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.
Section 7. 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 or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate 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 Certificate of Incorporation.
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 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 interests of the
Corporation, and the directors may abolish any such reserve.
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Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar year.
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the Corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
15
<PAGE> 19
ARTICLE VII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors 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, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of St. Louis, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
September 22, 1992.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 22nd day of
September, 1992.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
Exhibit 3.44
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA CORPORATION OF MICHIGAN", FILED IN THIS
OFFICE ON THE THIRTIETH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[STATE OF DELAWARE SEAL] -------------------------------------
Edward J. Freel, Secretary of state
AUTHENTICATION: 9228938
DATE: 07 - 31 - 98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA CORPORATION OF MICHIGAN
FIRST: The name of the corporation (hereinafter sometimes referred
to as the "Corporation") is:
Chancellor Media Corporation of Michigan
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
be issued, sold or offered for sale by the Corporation; provided, however, that
in connection with the issuance or
<PAGE> 3
sale of any such shares or securities, the Board of Directors of the Corporation
may, in its sole discretion, offer such shares or securities, or any part
thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall
be entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Jane C. Serena
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 30th day of July, 1998.
/s/ Jane C. Serena
---------------------------------
Jane C. Serena
Incorporator
<PAGE> 6
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA CORPORATION OF MICHIGAN
FIRST: The name of the corporation (hereinafter sometimes referred
to as the "Corporation") is:
Chancellor Media Corporation of Michigan
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
be issued, sold or offered for sale by the Corporation; provided, however, that
in connection with the issuance or
<PAGE> 7
sale of any such shares or securities, the Board of Directors of the Corporation
may, in its sole discretion, offer such shares or securities, or any part
thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall
be entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Jane C. Serena
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
<PAGE> 8
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 9
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 30th day of July, 1998.
/s/ Jane C. Serena
---------------------------
Jane C. Serena
Incorporator
<PAGE> 1
EXHIBIT 3.45
BY-LAWS
OF
CHANCELLOR MEDIA CORPORATION OF MICHIGAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I. OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholders' Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 6
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 7
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 8
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 8
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 10. Assistant Secretary . . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE V. CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 13
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 13
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Payment of Dividends; Directors' Duties. . . . . . . . . . . . . 15
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 16
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City
of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
1
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 7
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 8
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 10
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 11
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 13
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 14
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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
11
<PAGE> 15
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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 16
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 17
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to another action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 18
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 19
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
16
<PAGE> 20
meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 21
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Assistant Secretary of
Chancellor Media Corporation of Michigan, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
July 30, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
July, 1998.
/s/ ANDREA HULCY
---------------------------------
Andrea Hulcy, Assistant Secretary
18
<PAGE> 1
EXHIBIT 3.46
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WAXQ INC.", CHANGING ITS NAME FROM "WAXQ, INC." TO "CHANCELLOR
MEDIA/WAXQ INC.", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D.
1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8715879
DATE: 10-22-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WAXQ INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WAXQ Inc. ("Corporation"), a Delaware corporation, hereby certifies
that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in lieu
thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA/WAXQ INC."
SECOND: The Registered Agent of the Corporation is:
THE CORPORATION TRUST COMPANY
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
WAXQ INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WAXQ INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, WAXQ Inc. ("Corporation"), a Delaware corporation, hereby certifies
that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in lieu
thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA/WAXQ INC."
SECOND: The Registered Agent of the Corporation is:
THE CORPORATION TRUST COMPANY
1209 Orange Street
Wilmington, Delaware 19801
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
WAXQ INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY "WAXQ INC." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR AS
THE RECORDS OF THIS OFFICE SHOW, AS OF THE THIRTIETH DAY OF JUNE, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED
TO DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID
TO DATE.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8536311
DATE: 06-30-97
<PAGE> 5
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-----------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "KBSG INC.", CHANGING ITS NAME FROM "KBSG INC.", TO "WAXQ INC.", FILED IN
THIS OFFICE ON THE TWELFTH DAY OF AUGUST, A.D. 1998, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8063726
DATE: 08/12/96
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
KBSG INC.
KBSG INC., a corporation incorporated and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by the unanimous
written consent of its members filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendments to the
Certificate of Incorporation of said Corporation:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended by changing the Article thereof numbered "1", so that, as amended,
said Article shall be and read as follows:
1. The name of the Corporation is: WAXQ INC.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation
Law of the State of Delaware.
FOURTH: The Corporation has authorized the changes hereinbefore set forth
by resolution of its Board of Directors.
FIFTH: This amendment shall be effective upon filing with the Secretary of
State of the State of Delaware.
IN WITNESS WHEREOF, said KBSG INC. has caused this Certificate to be signed by
Ilene W. Stack, its Assistant Secretary this 7th day of August, 1996.
KBSG INC.
By: /s/ ILENE W. STACK
-----------------------------------
Ilene W. Stack, Assistant Secretary
<PAGE> 7
DE 8/12/96
WAXQ Inc.
(N/C from KBSG Inc.)
<PAGE> 8
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"KNDD INC.", A DELAWARE CORPORATION,
WITH AND INTO "KBSG INC." UNDER THE NAME OF "KBSG INC.", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE SEVENTEENTH DAY OF JUNE, A.D. 1996, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 798165
DATE: 6/17/96
<PAGE> 9
CERTIFICATE OF MERGER
OF
KNDD INC.
AND
KBSG INC.
***************************************
THE UNDERSIGNED, being the Senior Vice President of KBSG INC., a
corporation and existing under and by virtue of the General Corporation Law of
the State of Delaware ("KBSG"), does hereby certify that:
FIRST: The name and state of incorporation of each of the Constituent
Corporations is as follows:
Name State of Incorporation
---- ----------------------
KNDD INC. Delaware
KBSG INC. Delaware
SECOND: A Merger Agreement between the parties to the Merger has been
approved, adopted, certified, executed and acknowledged by each of the
Constituent Corporations in accordance with the requirements of subsection (c)
of Section 251 of the General Corporation Law of the State of Delaware.
THIRD: The name of the Surviving Corporation is KBSG Inc.
FOURTH: The Certificate of Incorporation of the Surviving Corporation shall be
that of KBSG Inc., a Delaware corporation, and shall remain in force and effect.
FIFTH: The executed Merger Agreement is on file at the principal place of
business of the Surviving Corporation, the address of which is 1515 Broadway,
27th floor, New York, NY 10036.
SIXTH: A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any of the
Constituent Corporations.
IN WITNESS WHEREOF, KBSG has caused this Certificate of Merger to be
signed by Michael D. Fricklas, its Senior Vice President, and attested by Ilene
W. Stack, its Assistant Secretary, this 12th day of June 1996.
KBSG INC.
By: /s/ MICHAEL D. FRICKLAS
------------------------------------------
Michael D. Fricklas, Senior Vice President
Attest:
By: /s/ ILENE W. STACK
-----------------------------------
Ilene W. Stack, Assistant Secretary
<PAGE> 10
DE 6/17/96
KBSG Inc.
Certificate of Merger of KNDD Inc.
with and into KBSG Inc.
<PAGE> 11
PAGE 1
STATE OF DELAWARE[LOGO]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF KNBQ INC. FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF FEBRUARY, A.D. 1988,
AT 9 O'CLOCK A.M.
: : : : : :
RECEIVED FOR RECORD
MARCH 21, A.D. 1988
[SIG] /s/ MICHAEL HARKINS
- -------------------------------- ------------------------------------
RECORDER Michael Harkins, Secretary of State
$3.00 STATE DOCUMENT FEE PAID AUTHENTICATION: :1595619
DATE: 02/23/1988
[SEAL]
<PAGE> 12
BOOK D112 PAGE 341
FILED
FEB 16 1988 9 AM
/s/ MICHAEL HARKINS
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
KNBQ INC.
Under Section 242 of the General Corporation
Law of the State of Delaware
IT IS HEREBY CERTIFIED THAT;
1. The name of the corporation is KNBQ INC., (hereinafter the
"corporation").
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article FIRST thereof and by substituting
in lieu thereof the following new Article:
"FIRST: The name of the corporation is KBSG INC."
3. The amendment of the Certificate of Incorporation herein certified
has been authorized pursuant to the unanimous vote of the Directors
of the Corporation on February 1, 1988.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the
corporation this 1st day of February, 1988.
KNBQ INC.
By /s/ MARK M. WEINSTEIN
-------------------------------------
MARK M. WEINSTEIN
Vice President/Secretary
[SEAL]
ATTEST:
/s/ EDWARD N. SCHOR
- -------------------------------
EDWARD N. SCHOR
Assistant Secretary
<PAGE> 13
2/16/88
Certificate of Amendment of
Certificate of Incorporation
- --------------------------------------------------------------------------------
Name change to KBSG
<PAGE> 14
STATE OF DELAWARE )
KENT COUNTY ) INDEXED
RECORDED in the Office for the Recording of Deeds, Etc. at Dover, in and for
the said County of Kent, In Corp.
Record D Vol. 112 Page 340 Etc.
the 21st day of March A.D. 1988
WITNESS my Hand and the Seal of said office
[SIG]
- ---------------------------
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
KNBQ INC.
Dated: February 1, 1988
Viacom International Inc.
1211 Avenue of the Americas
New York, New York 10036
<PAGE> 15
PAGE 1
BOOK G103 PAGE 137
STATE OF DELAWARE [LOGO]
OFFICE OF SECRETARY OF STATE
----------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF KNBQ INC. FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF
DECEMBER, A.D. 1986, AT 9 O'CLOCK A.M.
[SEAL] /s/ MICHAEL HARKINS
-----------------------------------
Michael Harkins, Secretary of State
RECEIVED FOR RECORD
Feb. 10 A.D. 1987
AUTHENTICATION: :1046776
[SIG] DATE: 12/16/1986
RECORDER
$3.00 STATE DOCUMENT FEE PAID
<PAGE> 16
BOOK G103 PAGE 138
FILED
DEC 15 1986
9 AM
/s/ MICHAEL HARKINS
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
KNBQ INC.
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the corporation is
KNBQ INC.
SECOND: The registered office of the corporation is to be located at
229 South State Street, in the City of Dover, in the County of Kent, in the
State of Delaware. The name of its registered agent at that address is the
United States Corporation Company.
THIRD: 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 Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the corporation shall have the following
purposes, objects and powers:
To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own, use, operate, install, maintain, service,
repair, process, alter, improve, import, export, sell, lease, assign,
transfer and generally to trade and deal in and with raw materials,
natural or manufactured articles or products, machinery, equipment,
devices, systems, parts, supplies, apparatus, goods, wares, merchandise
and personal property of every kind, nature or description, tangible or
intangible, used or capable of being used for any purpose whatsoever;
and to engage and participate in any mercantile, manufacturing or
trading business of any kind or character.
<PAGE> 17
BOOK G103 PAGE 139
To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge or otherwise dispose of or turn to account or deal with all or
any part of the property of the corporation and from time to time to
vary any investment or employment of capital of the corporation.
To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of all kinds, whether secured
by mortgage, pledge or otherwise, without limit as to amount, and to
secure the same by mortgage, pledge or otherwise; and generally to make
and perform agreements and contracts of every kind and description,
including contracts of guaranty and suretyship.
To lend money for its corporate purposes, invest and reinvest its funds,
and take, hold and deal with real and personal property as security for
the payment of funds so loaned or invested.
To the same extent as natural persons might or could do, to purchase or
otherwise acquire, and to hold, own, maintain, work, develop, sell,
lease, exchange, hire, convey, mortgage or otherwise dispose of and deal
in lands and leaseholds, and any interest, estate and rights in real
property, and any personal or mixed property, and any franchises,
rights, licenses or privileges necessary, convenient or appropriate for
any of the purposes herein expressed.
To apply for, obtain, register, purchase, lease or otherwise to acquire
and to hold, own, use, develop, operate and introduce and to sell,
assign, grant licenses or territorial rights in respect to, or otherwise
to turn to account or dispose of, any copyrights, trade marks, trade
names, brands, labels, patent rights, letters patent of the United
States or of any other country or government, inventions, improvements
and processes, whether used in connection with or secured under letters
patent or otherwise.
To participate with others in any corporation, partnership, limited
partnership, joint venture, or other association of any kind, or in any
transaction, undertaking or arrangement which the participating
corporation would have power to conduct by itself, whether or not such
participation involves sharing or delegation of control with or to
others; and to be an incorporator, promoter or manager of other
corporations of any type or kind.
To pay pensions and establish and carry out pension, profit sharing,
stock option, stock purchase, stock bonus, retirement, benefit,
incentive and commission plans, trusts and provisions
-2-
<PAGE> 18
BOOK G103 PAGE 140
for any or all of its directors, officers and employees, and for any or
all of the directors, officers and employees of its subsidiaries; and to
provide insurance for its benefit on the life of any of its directors,
officers or employees, or on the life of any stockholder for the purpose
of acquiring at his death shares of its stock owned by such stockholder.
To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, transfer, mortgage,
pledge or otherwise deal with or dispose of stocks, bonds or any other
obligation or securities of any corporation or corporations; 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, bonds or other
obligations are held or in any manner guaranteed by this corporation, or
in which this corporation is in any way interested; and to do any other
acts or things for the preservation, protection, improvement or
enhancement of the value of any such stock, bonds or other obligations;
and while owner of any such stock, bonds or other obligations to
exercise all the rights, powers and privileges or ownership thereof, and
to exercise any and all voting powers thereon; and to guarantee the
payment of dividends upon any stock, the principal or interest or both,
of any bonds or other obligations, and the performance of any contracts.
To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes or the attainment of any of the
objects or the furtherance of any of the powers hereinbefore set forth,
either alone or in association with other corporations, firms or
individuals, and to do every other act or acts, thing or things
incidental or appurtenant to or growing out of or connected with the
aforesaid business or powers or any part or parts thereof, provided the
same be not inconsistent with the laws under which this corporation is
organized.
The business or purpose of the corporation is from time to time to do
any one or more of the acts and things hereinafter set forth, and it
shall have power to conduct and carry on its said business, or any part
thereof, and to have one or more offices, and to exercise any or all of
its corporate powers and rights, in the State of Delaware, and in the
various other states, territories, colonies and dependencies of the
United States, in the District of Columbia, and in all or any foreign
countries.
The enumeration herein of the objects and purposes of the corporation
shall be construed as powers as well as
-3-
<PAGE> 19
BOOK G103 PAGE 141
objects and purposes and shall not be deemed to exclude by inference
any powers, objects or purposes which the corporation is empowered to
exercise, whether expressly by force of the laws of the State of
Delaware now or hereafter in effect, or impliedly by the reasonable
construction of said laws.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares, and the par value of each of
such shares is one dollar ($1.00).
FIFTH: The name and address of the sole incorporator is as follows:
BARBARA TEED, Viacom International Inc., 1211 Avenue of the Americas, New York,
N.Y. 10036.
SIXTH: 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:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in the By-Laws.
Election of directors need not be by ballot unless the By-Laws so provide.
(2) The Board of Directors shall have power without the assent or
vote of the stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the corporation; to fix and vary the amount to be reserved for any
proper purpose; to 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 profits; and to fix the times for the
declaration and payment of dividend.
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<PAGE> 20
BOOK G103 PAGE 142
(3) 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
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 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 as 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
legal attack because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any By-Laws from time to time
made by the stockholders; provided, however, that no By-Laws so made shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been made.
SEVENTH: The corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
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<PAGE> 21
BOOK G103 PAGE 143
EIGHTH: 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
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 this 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 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 all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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<PAGE> 22
BOOK G103 PAGE 144
NINTH: 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.
IN WITNESS WHEREOF, I have hereunder set my hand and seal this 12th day of
December, 1986.
/s/ BARBARA TEED
-------------------------
Barbara Teed
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<PAGE> 23
STATE OF DELAWARE ) INDEXED
KENT COUNTY )
RECORDED In the Office for the Recording of Deeds, Etc. at Dover, In and for
the said County of Kent, In Corp. Record G, Vol. 103, Page 137, Etc. the 10th
day of February A.D. 1987.
WITNESS my Hand and the Seal of said office.
[SIG]
----------------------------
Recorder
CERTIFICATE OF INCORPORATION
OF
KNBQ INC.
40.00
3.00
Dated: December 12, 1986
Mail
VIACOM INTERNATIONAL INC.
1211 Avenue of the Americas
New York, New York 10036
<PAGE> 24
DE 12/15/86
CERTIFIED COPY OF CERTIFICATE OF INCORPORATION
<PAGE> 1
Exhibit 3.47
================================================================================
MINUTES
AND
BY LAWS
OF
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
LAW OFFICES
OF
================================================================================
<PAGE> 2
BY - LAWS
of
KNBQ INC.
ARTICLE I - OFFICES
SECTION I. REGISTERED OFFICE. --The registered office shall be
established and maintained at 229 South State Street, Dover, in the County of
Kent, in the State of Delaware.
SECTION 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.
ARTICLE II - MEETING OF STOCKHOLDERS
SECTION I. ANNUAL MEETINGS. --Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of the meeting, shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting. In the event the
Board of Directors fails to so determine the time, date and place of meeting,
the annual meeting of stockholders shall be held at the registered office of the
corporation in Delaware on
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
may transact such other corporate business as shall be stated in the notice of
the meeting.
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<PAGE> 3
SECTION 2. OTHER MEETINGS. -- Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. -- Each stockholder entitled to vote in accordance
with the terms and provisions of the Certificate of Incorporation and these
By-Laws shall be entitled to one vote, in person or by proxy, for each share of
stock entitled to vote held by such stockholder, but no proxy shall be voted
after three years from its date unless such proxy provides for a longer period.
Upon the demand of any stockholder, the vote for directors and upon any question
before the meeting shall be by ballot. All elections for directors shall be
decided by plurality vote; all other questions shall be decided by majority vote
except as otherwise provided by the Certificate of Incorporation or the laws of
the State of Delaware.
SECTION 4. STOCKHOLDER LIST. -- The officer who has charge of the stock
ledger of the corporation shall at least 10 days before each meeting of
stockholders prepare a complete alphabetical addressed list of the stockholders
entitled to vote at the ensuing election, with the number of shares held by
each. Said 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 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 be available for inspection at the meeting.
SECTION 5. QUORUM. -- Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
bl 2
<PAGE> 4
SECTION 6. SPECIAL MEETINGS. -- Special meetings of the stockholders,
for any purpose, unless otherwise prescribed by statute or by the Certificate 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 directors
or stockholders entitled to vote. Such request shall state the purpose of the
proposed meeting.
SECTION 7. NOTICE OF MEETINGS. -- Written notice, stating the place,
date and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten nor
more than fifty days before the date of the meeting.
SECTION 8. BUSINESS TRANSACTED -- No business other than that stated in
the notice shall be transacted at any meeting without the unanimous consent of
all the stockholders entitled to vote thereat.
SECTION 9. ACTION WITHOUT MEETING. -- Except as otherwise provided by
the Certificate of Incorporation, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken in connection with any corporate
action by any provisions of the statutes or the Certificate of Incorporation or
of these By-Laws, the meeting and vote of stockholders may be dispensed with, if
all the stockholders who would have been entitled by vote upon the action if
such meeting were held, shall consent in writing to such corporate action being
taken.
ARTICLE III - DIRECTORS
SECTION I. NUMBER AND TERM. -- The number of directors shall be NOT
LESS THAN 3 nor more than 7. The directors shall be elected at the annual
meeting of the stockholders and each director shall be elected to serve until
his successor shall be elected and shall qualify. The number of directors may
not be less than three except that where all the shares of the corporation are
owned beneficially and of record by either one or two stockholders, the number
of directors may be less than three but not less than the number of
stockholders.
bl 3
<PAGE> 5
SECTION 2. RESIGNATIONS. -- Any director, member of a committee or
other officer may resign at any time. Such resignation shall be made in writing,
and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. -- If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
SECTION 4. REMOVAL. --- Any director or directors may be removed either
for or without cause at any time by the 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 stockholders 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 stockholders entitled to
vote.
SECTION 5. INCREASE OF NUMBER. -- The number of directors may be
increased by amendment of these By-Laws by the affirmative vote of a majority of
the directors, though less than a quorum, or, by the affirmative vote of a
majority in interest of the stockholders, at the annual meeting or at a special
meeting called for that purpose, and by like vote the additional directors may
be chosen at such meeting to hold office until the next annual election and
until their successors are elected and qualify.
SECTION 6. COMPENSATION. -- Directors shall not receive any stated
salary for their services as directors or as members of committees, but by
resolution of the board a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
bl 4
<PAGE> 6
SECTION 7. ACTION 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 prior to such action a written
consent thereto is signed by all members of the board, or of such committee as
the case may be, and such written consent is filed with the minutes of
proceedings of the board or committee.
ARTICLE IV - OFFICERS
SECTION I. OFFICERS. -- The officers of the corporation shall consist
of a President, a Treasurer, and a Secretary, and shall be elected by the Board
of Directors and shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect a Chairman, one or more
Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as it
may deem proper. None of the officers of the corporation need be directors. The
officers shall be elected at the first meeting of the Board of Directors after
each annual meeting. More than two offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. -- The Board of Directors may
appoint such officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such power and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. -- The Chairman of the Board of Directors, if one
be elected, shall preside at all meetings of the Board of Directors and he shall
have and perform such other duties as from time to time may be assigned to him
by the Board of Directors.
SECTION 4. PRESIDENT. -- The President shall be the chief executive
officer of the corporation and shall have the general powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or non-election of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the corporation. Except as
the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts in behalf of the
corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.
bl 5
<PAGE> 7
SECTION 5. VICE-PRESIDENT. -- Each Vice-President shall have such
powers and shall perform such duties as shall be assigned to him by the
directors.
SECTION 6. TREASURER. -- The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables 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, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
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 for the faithful discharge of his duties in such amount and
with such surety as the board shall prescribe.
SECTION 7. SECRETARY. -- The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and directors, and all other
notices required by law or by these By-Laws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the President, or by the directors, or stockholders, upon
whose requisition the meeting is called as provided in these By-Laws. He shall
record all the proceedings of the meetings of the corporation and of directors
in a book to be kept for that purpose. 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 any assistant secretary.
SECTION 8. ASSISTANT TREASURERS & ASSISTANT SECRETARIES. -- Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
bl 6
<PAGE> 8
ARTICLE V
SECTION 1. CERTIFICATES OF STOCK. -- 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 chairman or vice-chairman of the board of directors,
or the president or a vice-president and the treasurer or an assistant
treasurer, or the secretary of the corporation, certifying the number of shares
owned by him in the corporation. If the corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations, or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class of series of stock, provided
that, except as other wise provided in section 202 of the General Corporation
Law of Delaware, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Where a
certificate is countersigned (1) by a transfer agent other than the corporation
or its employee, or (2) by a registrar other than the corporation or its
employee, the signatures of such officers may be facsimiles.
SECTION 2. LOST CERTIFICATES. -- New certificates of stock may be
issued in the place of any certificate therefore issued by the corporation,
alleged to have been lost or destroyed, and the directors may, in their
discretion, require the owner of the lost or destroyed certificate or his legal
representatives, to give the corporation a bond, in such sum as they may direct,
not exceeding double the value of the stock, to indemnify the corporation
against it on account of the alleged loss of any such new certificate.
bl 7
<PAGE> 9
SECTION 3. TRANSFER OF SHARES. -- The shares of stock of the
corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other persons as the directors may designate, by who they
shall be cancelled, and new certificates shall thereupon be issued. A record
shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. -- 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, 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 sixty nor less than ten
days before the day of such meeting, nor more than sixty days prior to any other
action. 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.
SECTION 5. 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
dividends there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. -- The corporate seal shall be circular in form and
shall contain the name of the corporation, the year of its creation and the
words "CORPORATE SEAL DELAWARE." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise reproduced.
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<PAGE> 10
SECTION 7. FISCAL YEAR. -- The fiscal year of the corporation shall end
December 31.
SECTION 8. CHECKS -- 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 the officer or officers, agent or agents of
the corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE -- Whenever any notice is
required by these By-Laws to be given, personal notice is not meant unless
expressly stated, and any notice so required shall be deemed to be sufficient if
given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his address as it appears on the
records of the corporation, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By-Laws, 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 proper notice.
ARTICLE VI - CLOSE CORPORATIONS: MANAGEMENT BY SHAREHOLDERS
If the certificate of incorporation of the corporation states that the
business and affairs of the corporation shall be managed by the shareholders of
the corporation rather than by a board of directors, then, whenever the context
so requires the shareholders of the corporation shall be deemed the directors of
the corporation for purposes of applying any provision of these by-laws.
ARTICLE VII - AMENDMENTS
These By-Laws may be altered and repealed and By-Laws may be made at
any annual meeting of the stockholders or at any special meeting thereof if
notice thereof is contained in the notice of such special meeting by the
affirmative vote of a majority of the stock issued and outstanding or entitled
to vote thereat, or by the regular meeting of the Board of Directors, at any
regular meeting of the Board of Directors, or at any special meeting of the
Board of Directors, if notice thereof is contained in the notice of such special
meeting.
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<PAGE> 11
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
KBSG INC.
WE, THE UNDERSIGNED, being all the members of the Board of Directors of
KBSG INC., a Delaware corporation (the "Corporation"), do, by means of this
Unanimous Written Consent of the Board of Directors, hereby adopt the following
resolutions:
RESOLVED, that the exchange (the "Transaction") with
Entertainment Communications Inc. ("Entercom") of the assets of the
Corporation's Seattle radio stations, KBSG AM/FM and KNDD-FM for the
assets of New York radio station, WAXQ-FM to be acquired by Entercom
from GAF Broadcasting Company, Inc. ("GAF") for purposes of
consummating the Transaction, be, and the same hereby is, in all
respects, authorized and approved, and
FURTHER RESOLVED, that the execution and delivery by the
officers of the Corporation of definitive agreements with Entercom and
GAF with respect to the Transaction, upon the terms set forth in the
preceding resolution and such other terms and conditions as such
officer or officers executing the same shall have approved, such
approval to be conclusively evidenced by their execution thereof, be,
and the same hereby is, ratified and approved, in all respects; and
FURTHER RESOLVED, that the officers of the Corporation be, and
each of them acting alone hereby is, authorized and directed, in the
name and on behalf of the Corporation, to execute and deliver any and
all other agreements, documents or certificates, and to do or cause to
be done all such further acts and things, as such officer or officers
deem necessary, appropriate or advisable in connection with the
Transaction and in order to carry out the purposes and intents of the
foregoing resolutions; that the authority of such officer or officers
to act under these resolutions shall be conclusively evidenced by their
so acting; and that any and all such actions heretofore taken on behalf
of the Corporation in such respects in connection with the Transaction
are hereby ratified, approved and confirmed as the act and deed of the
Corporation.
Dated: March 27, 1996
/s/ Philippe P. Dauman /s/ George S. Smith, Jr.
- ---------------------------------- ----------------------------------
Philippe P. Dauman George S. Smith, Jr.
/s/ Edward Horowitz
----------------------------------
Edward Horowitz
<PAGE> 12
EXHIBIT A
RESOLUTIONS OF THE BOARD OF DIRECTORS
ADOPTED MAY 23,1996
RESOLVED, that the project by the New York City Industrial Development
agency (the "Agency") for Viacom Inc. ("Viacom" or the "Company") and certain of
its affiliates, consisting of the renovation and improving from time to time of
leased space in the buildings located at 1515 Broadway, New York, New York, 1633
Broadway, New York, New York and 1230 Avenue of the Americas, New York, New York
(collectively, the "Properties"), and the acquisition (by purchase, lease or
license), installation and maintenance from time to time of furniture,
machinery, equipment and certain other tangible personal property for use
therein at the Properties and other approved locations within the City of New
York, all for use by Viacom and certain affiliates in the entertainment,
publishing and communications operations of Viacom and certain Viacom affiliates
(the "Project"), be, and the same hereby is, authorized and approved; and
FURTHER RESOLVED, the officers of the Company and its subsidiaries be,
and each of them acting alone hereby is, authorized and directed, in the name
and on behalf of the Company or such subsidiary, to enter into and deliver the
following agreements (collectively, the "Agreements"), each in substantially the
form of the most current draft thereof, with such additions, deletions or
modifications thereto, as such officer or officers may approve, such approval to
be conclusively evidenced by their execution thereof: (1) Project Agreement
(Fifth Draft), by and between the Agency and the Obligors, as such term is
defined therein; (2) Amended and Restated Lease Agreement (1515) (Fifth Draft),
by and between the Agency and the Lessees, as such term is defined therein; (3)
Amended and Restated Lease Agreement (1633) (First Draft), by and between the
Agency and the Lessees, as such term is defined therein; (4) Amended and
Restated Lease Agreement (1230) (First Draft), by and between the Agency and the
Lessees, as such term is defined therein; (5) Lease Agreement (Equipment
Project) (Second Draft), by and between the Agency and the Equipment Lessees, as
such term is defined therein; (6) Indenture of Trust (Third Draft), as
supplemented by the four Bond Supplemental Indentures of Trust (Second Drafts),
between the Agency and United States Trust Company of New York, as Trustee (the
"Trustee"); (7) Four Letters of Representation and Indemnity Agreements from
Viacom, International and the Lessees, as such term is defined therein to the
Agency, Trustee and Viacom IDA Inc. as Bond Purchaser; (8) Letter of
Authorization for Sales Tax Exemption from the Agency to the Company and each of
the Viacom Entities, as such term is defined therein; and
FURTHER RESOLVED, that the issuance by the Agency, from time to time,
of bonds in multiple series (the "Bonds"), in an aggregate principal amount not
to exceed $292 million to finance the costs of the Project, the terms of each
such series of Bonds to be determined as set forth in the Indenture of Trust and
related Certificates of Determination of the Agency with respect to each such
series of Bonds, be and the same hereby is approved, such approval to be
conclusively evidenced by the execution and delivery of such Letters of
Representation and Indemnity Agreements; and
FURTHER RESOLVED, that the officers of the Company and its subsidiaries
be, and each of them acting alone hereby is, authorized and directed, in the
name and on behalf of the Company or such subsidiary, to execute and deliver any
and all agreements, documents and certificates, and to do or cause to be done
all such further acts and things, as such officer or officers deem necessary,
appropriate or advisable in connection with the Agreements and in order to carry
out the purposes and intent of the foregoing resolutions; that the authority of
such officer or officers to act under these resolutions shall be conclusively
evidenced by their so acting, and that any and all actions heretofore taken on
behalf of the Company or its subsidiaries with respect to the financing of the
renovation, improving, acquisition, leasing, installation and maintenance of the
Project and all matters related thereto, are hereby ratified, approved and
confirmed as the act and deed of the Company or such subsidiary.
<PAGE> 13
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
KBSG INC.
WE, THE UNDERSIGNED, being all the members of the Board of Directors of
KGSB INC., a Delaware corporation (the "Corporation"), do, by means of this
Unanimous Written Consent of the Board of Directors, hereby ratify, confirm and
approve the resolutions with respect to the project by the New York City
Industrial Development agency (the "Agency") for Viacom Inc. ("Viacom" or the
"Company") and certain of its affiliates in the form attached hereto with the
same force and effect as if such resolutions were adopted at a meeting of the
Board of Directors duly called and held for the purpose.
Dated: May 23, 1996
/s/ Philippe P. Dauman /s/ George S. Smith, Jr.
- ---------------------------------- ----------------------------------
Philippe P. Dauman George S. Smith, Jr.
/s/ Edward D. Horowitz
----------------------------------
Edward D. Horowitz
<PAGE> 1
Exhibit 3.48
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WAXQ LICENSE CORP.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH
DAY OF MAY, A.D. 1997, AT 12:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2755441 8100 AUTHENTICATION: 8483780
971172805 DATE: 05-28-97
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
WAXQ LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WAXQ LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of
New Castle. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock,
par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issues, sold or offered for sale by the Corporation; provided, however, that in
<PAGE> 3
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation, as amended from time to time.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sonja K. Gruhl
Latham & Watkins
1001 Pennsylvania Avenue, NW
Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transactions from which the director derived an improper personal
benefit.
<PAGE> 4
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 28th day of May, 1997.
/s/ Sonja K. Gruhl
---------------------------
Sonja K. Gruhl
Incorporator
<PAGE> 1
EXHIBIT 3.49
BY-LAWS
OF
WAXQ LICENSE CORP.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 6
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 8
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 8
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 10. Assistant Secretary.. . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 13
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 13
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Payment of Dividends' Directors Duties . . . . . . . . . . . . 15
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 16
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 17
</TABLE>
iii
<PAGE> 5
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
1
<PAGE> 6
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 7
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
3
<PAGE> 8
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the Board of Directors at any
meeting of stockholders by a majority of the stock represented and entitled to
vote thereat.
4
<PAGE> 9
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 10
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and in like manner and on like notice
on the written request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 11
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 12
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 13
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 14
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 15
President. The Vice Presidents shall have such other duties as from time to
time may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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
11
<PAGE> 16
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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 17
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 18
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to another action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 19
other person, whether or not it shall have express or other notice thereof,
save as expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 20
Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
16
<PAGE> 21
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 22
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WAXQ License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising seventeen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
May 29, 1997.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 29th day of
May 1997.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
18
<PAGE> 1
EXHIBIT 3.50
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "CHANCELLOR MEDIA/KIBB INC.", CHANGING ITS NAME FROM "CHANCELLOR MEDIA/KIBB
INC." TO "CHANCELLOR MEDIA/KCMG INC.", FILED IN THIS OFFICE ON THE EIGHTEENTH
DAY OF FEBRUARY, A.D. 1998, AT 11 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8926464
DATE: 02-18-98
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA/KIBB INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Chancellor Media/KIBB Inc. (the "Corporation"), a Delaware
corporation hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA/KCMG INC."
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 10th day of February, 1998.
CHANCELLOR MEDIA/KIBB INC.,
a Delaware Corporation
By:/s/ OMAR CHOUCAIR
--------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "CHANCELLOR MEDIA/KIBB INC.", CHANGING ITS NAME FROM "CHANCELLOR MEDIA/KIBB
INC." TO "CHANCELLOR MEDIA/KCMG INC.", FILED IN THIS OFFICE ON THE EIGHTEENTH
DAY OF FEBRUARY, A.D. 1998, AT 11 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8926464
DATE: 02-18-98
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA/KIBB INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Chancellor Media/KIBB Inc. (the "Corporation"), a Delaware
corporation hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA/KCMG INC."
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 10th day of February, 1998.
CHANCELLOR MEDIA/KIBB INC.,
a Delaware Corporation
By:/s/ OMAR CHOUCAIR
--------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 5
PAGE 1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CHANGE OF REGISTERED AGENT OF "KIBB INC.", FILED IN THIS OFFICE ON THE SEVENTH
DAY OF OCTOBER, A.D. 1997, AT 2:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8690900
DATE: 10-08-97
<PAGE> 6
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
*****
KIBB INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is The Prentice-Hall
Corporation System, Inc., 1013 Centre Road, Wilmington, Delaware 19805 and the
present registered office of the corporation is in the county of New Castle;
The Board of Directors of KIBB INC. adopted the following resolution on
the 19th day of September, 1997.
RESOLVED, that the registered office of KIBB INC. in the state of
Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, and the authorization
of the present registered agent of this corporation be and the same is hereby
withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby
constituted and appointed the registered agent of this corporation at the
address of its registered office.
IN WITNESS WHEREOF, KIBB INC. has caused this statement to be signed by
Omar Choucair, its Vice President, this 3rd day of October, 1997.
/s/ OMAR CHOUCAIR
----------------------------------------
Omar Choucair, Vice President
<PAGE> 7
PAGE 1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "KIBB INC.", CHANGING ITS NAME FROM "KIBB INC." TO "CHANCELLOR MEDIA/KIBB
INC.", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT 4:30
O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
---------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8712953
DATE: 10-21-97
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
KIBB INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, KIBB Inc. ("Corporation"), a Delaware corporation, hereby certifies
that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA/KIBB INC."
2. The Board of Directors and Shareholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17th day of October, 1997.
KIBB INC., a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 9
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
KIBB INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is The Prentice-Hall
Corporation System, Inc., 1013 Centre Road, Wilmington, Delaware 19805 and the
present registered office of the corporation is the county of New Castle;
The Board of Directors of KIBB INC. adopted the following resolution on
the 19th day of September, 1997.
RESOLVED, that the registered office of KIBB INC. in the state of Delaware
be and it hereby is changed to Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle, and the authorization of the
present registered agent of this corporation be and the same is hereby
withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby
constituted and appointed the registered agent of this corporation at the
address of its registered office.
IN WITNESS WHEREOF, KIBB INC. has caused this statement to be signed by
Omar Choucair, its Vice President, this 3rd day of October, 1997.
/s/ OMAR CHOUCAIR
---------------------------------------
Omar Choucair, Vice President
<PAGE> 10
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY "KIBB INC." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR AS
THE RECORDS OF THIS OFFICE SHOW, AS OF THE THIRTIETH DAY OF JUNE, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE NOT BEEN
ASSESSED TO DATE.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8536307
DATE: 06-30-97
<PAGE> 11
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "KIBB INC.", FILED IN THIS OFFICE ON THE FOURTH DAY OF
FEBRUARY, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8316519
DATE: 02-05-97
<PAGE> 12
CERTIFICATE OF INCORPORATION
OF
KIBB Inc.
1. The name of the Corporation is: KIBB Inc.
2. The address of its registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle, 19805-1297.
The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted
is: To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall
have authority to issue is Two Hundred (200). All such shares are to have $.01
par value.
5. The name and mailing address of the incorporator is as follows:
Ilene W. Stack 1515 Broadway, Legal Department, New York, New York
10036-5794
6. The Corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-Laws of the Corporation.
8. Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provisions contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation. Elections of Directors
need not be by written ballot unless the By-Laws of the Corporation shall so
provide.
9. 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 Section 102 of the General Corporation Law
of the State of Delaware, as the same may be amended and supplemented.
10. The corporation shall, to the fullest extent permitted by the
provisions of Section 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 By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both 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.
11. 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 statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 4th day of February 1997.
/s/ ILENE W. STACK
----------------------------------------
Ilene W. Stack, Incorporator
<PAGE> 13
KIBB Inc.
CERTIFICATE OF INCORPORATION
C/I
<PAGE> 1
Exhibit 3.51
AMENDED AND RESTATED
BYLAWS
OF
KIBB INC.
A Delaware Corporation
Effective as of July 2, 1997
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent.......................................1
1.2 Other Offices.....................................................1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting....................................................1
2.2 Special Meeting...................................................2
2.3 Place of Meetings.................................................2
2.4 Notice............................................................2
2.5 Voting List.......................................................2
2.6 Quorum............................................................3
2.7 Required Vote; Withdrawal of Quorum...............................3
2.8 Method of Voting; Proxies.........................................3
2.9 Record Date.......................................................4
2.10 Conduct of Meeting................................................5
2.11 Inspectors........................................................5
ARTICLE THREE: DIRECTORS
3.1 Management........................................................6
3.2 Number; Qualification; Election; Term.............................6
3.3 Change in Number..................................................6
3.4 Removal...........................................................6
3.5 Vacancies.........................................................6
3.6 Meetings of Directors.............................................7
3.7 First Meeting.....................................................7
3.8 Election of Officers..............................................7
3.9 Regular Meetings..................................................7
3.10 Special Meetings..................................................7
3.11 Notice............................................................7
3.12 Quorum; Majority Vote.............................................8
3.13 Procedure.........................................................8
3.14 Presumption of Assent.............................................8
(i)
<PAGE> 3
3.15 Compensation..................................................... 9
ARTICLE FOUR: COMMITTEES
4.1 Designation...................................................... 9
4.2 Number; Qualification; Term...................................... 9
4.3 Authority........................................................ 9
4.4 Committee Changes................................................ 9
4.5 Alternate Members of Committees.................................. 9
4.6 Regular Meetings................................................. 10
4.7 Special Meetings................................................. 10
4.8 Quorum; Majority Vote............................................ 10
4.9 Minutes.......................................................... 10
4.10 Compensation..................................................... 10
4.11 Responsibility................................................... 10
ARTICLE FIVE: NOTICE
5.1 Method........................................................... 10
5.2 Waiver........................................................... 11
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office................................... 11
6.2 Removal.......................................................... 11
6.3 Vacancies........................................................ 12
6.4 Authority........................................................ 12
6.5 Compensation..................................................... 12
6.6 Chairman of the Board............................................ 12
6.7 President........................................................ 12
6.8 Vice President................................................... 12
6.9 Treasurer........................................................ 12
6.10 Assistant Treasurers............................................. 13
6.11 Secretary........................................................ 13
6.12 Assistant Secretaries............................................ 13
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares.......................................... 13
(ii)
<PAGE> 4
7.2 Replacement of Lost or Destroyed Certificates .................... 14
7.3 Transfer of Shares ............................................... 14
7.4 Registered Stockholders .......................................... 14
7.5 Regulations ...................................................... 14
7.6 Legends .......................................................... 15
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends ........................................................ 15
8.2 Reserves ......................................................... 15
8.3 Books and Records ................................................ 15
8.4 Fiscal Year ...................................................... 15
8.5 Seal ............................................................. 15
8.6 Resignations ..................................................... 15
8.7 Securities of Other Corporations ................................. 16
8.8 Telephone Meetings ............................................... 16
8.9 Action Without a Meeting ......................................... 16
8.10 Invalid Provisions ............................................... 17
8.11 Mortgages, etc. .................................................. 17
8.12 Headings ......................................................... 17
8.13 References ....................................................... 17
8.14 Amendments ....................................................... 17
(iii)
<PAGE> 5
AMENDED AND RESTATED
BYLAWS
of
KIBB INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of KIBB Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered agent
of the Corporation shall be as designated from time to time by the appropriate
filing by the Corporation in the office of the Secretary of State of the State
of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
<PAGE> 6
2.2 Special Meeting. A special meeting of the stockholders may be called at
any time by the Chairman of the Board, the President or the board of directors,
and shall be called by the President or the Secretary at the request in writing
of the stockholders of record of not less than ten percent of all shares
entitled to vote at such meeting or as otherwise provided by the certificate of
incorporation of the Corporation. A special meeting shall be held on such date
and at such time as shall be designated by the person(s) calling the meeting and
stated in the notice of the meeting or in a duty executed waiver of notice of
such meeting. Only such business shall be transacted at a special meeting as may
be stated or indicated in the notice of such meeting or in a duly executed
waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at any
place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time of
each meeting of the stockholders and, in case of a special meeting, the purpose
or purposes for which the meeting is called shall be delivered not less than ten
nor more than 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 officer or
person(s) calling the meeting, to each stockholder of record entitled to vote at
such meeting. If such notice is to be sent by mail, it shall be directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders, the
Secretary or other officer the Corporation who has charge of the Corporation's
stock ledger, either directly or through another officer appointed by him or
through a transfer agent appointed by the board of directors, shall prepare a
complete list of stockholders entitled to vote thereat, arranged in alphabetical
order and showing the address of each stockholder and number of shares in the
name of each stockholder. For a period of ten days prior to such meeting, such
list shall be kept on file at a place within the city where the meeting is to
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be held, which place shall be specified in the notice of meeting or a duly
executed waiver of notice of such meeting or, if not so specified, at the place
where the meeting is to be held and shall be open to examination by any
stockholder during ordinary business hours. Such list shall be produced at such
meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled
to vote on a matter, present in person or by proxy, shall constitute a quorum
at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders,
the stockholders entitled to vote thereat who are present, in person or by
proxy, or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other
than announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide
any question brought before such meeting, unless the question is one on which,
by express provision of statute, the certificate of incorporation of the
Corporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each 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 three years from the date of
its execution, unless otherwise provided in the
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<PAGE> 8
proxy. If no date is stated in a proxy, such proxy shall be presumed to have
been executed on the date of the meeting at which it is to be voted. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders, or any adjournment
thereof, 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 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, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days prior to such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
(i) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law or these bylaws, 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
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<PAGE> 9
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 in the State of
Delaware, principal place of business, or such officer or agent 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 law or the bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these bylaws or by some person appointed by the
meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of 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, count and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
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ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The first board of directors
shall consist of the number of directors named in the certificate of
incorporation of the Corporation. Thereafter, the number of directors which
shall constitute the entire board of directors shall be determined by resolution
of the board of directors or by resolution of the stockholders at the annual
meeting thereof or at a special meeting thereof called for that purpose. Except
as otherwise required by law, the certificate of incorporation of the
Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each director so chosen
shall hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors constituting
the entire board of directors shall have the effect of shortening the term of
any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director 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 then entitled to vote on the election of directors; provided,
however, that if at any time stockholders have the right to cumulate votes in
the election of directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed, no one
of the directors may be removed 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.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by the sole
remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death,
resignation, or
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removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least 10% of the
total number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly-created directorships or to replace the directors chosen by
the directors then in office. Except as otherwise provided in these bylaws, 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 the 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 in these
bylaws with respect of the filling of other vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the
meeting, submit a signed waiver of notice or who
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<PAGE> 12
shall attend such meeting without protesting, prior to or at its commencement,
the lack of notice to him. 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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is present
at the 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 secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or 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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3.15 COMPENSATION. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 DESIGNATION. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 NUMBER; QUALIFICATION; TERM. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 AUTHORITY. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 COMMITTEE CHANGES. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 ALTERNATE MEMBERS OF COMMITTEES. The board of directors may designate
one or more directors as alternate members of any committee. Any such alternate
member may replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee 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.
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4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting of any committee need
be specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting
from time to time, without notice other than an announcement at the meeting,
until a quorum is present. The act of a majority of the members present at any
meeting at which a quorum is in attendance shall be the act of a committee,
unless the act of a greater number is required by law, the certificate of
incorporation of the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for placement in the
minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation
of authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed upon it or such director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation, or these bylaws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given,
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personal notice shall not be required and any such notice may be given (a) in
writing, by mail, postage prepaid, addressed to such committee member, director,
or stockholder at his address as it appears on the books or (in the case of a
stockholder) the stock transfer records of the Corporation, or (b) by any other
method permitted by law (including but not limited to overnight courier service,
telegram, telex, or telecopy). Any notice required or permitted to be given by
mail shall be deemed to be delivered and given at the time when the same is
deposited in the United States mail as aforesaid. Any notice required or
permitted to be given by overnight courier service shall be deemed to be
delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telecopy shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2. Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation shall
be a President, a Secretary, and such other officers as the board of directors
may from time to time elect or appoint, including without limitation, a Chairman
of the Board, a Chief Executive Officer, one or more Vice Presidents (with each
Vice President to have such descriptive title, if any, as the board of directors
shall determine), and a Treasurer. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified, until his
death, or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment
the best interest 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.
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6.3 Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such duties
in the management of the Corporation as are provided in these bylaws or as may
be determined by resolution of the board of directors not inconsistent with
these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the board of directors; provided, however, that
the board of directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the Board
or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and duties
as may be assigned to him by the board of directors, the Chairman of the Board,
or the President, and (in order of their seniority as determined by the board
of directors or, in the absence of such determination, as determined by the
length of time they have held the office of Vice President) shall exercise the
powers of the President during that officer's absence or inability to act. As
between the Corporation and third parties, 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.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's funds
and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all
12
<PAGE> 17
monies and valuable effects in the name and to the credit of the Corporation in
such depository or depositories as may be designated by the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors, the Chairman of the Board, or the President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the President or the Treasurer. The Assistant Treasurers
(in the order of their seniority as determined by the board of directors or, in
the absence of such a determination, as determined by the length of time they
have held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the President or the Secretary. The Assistant
Secretaries (in the order of their seniority as determined by the board of
directors or, in the absence of such a determination, as determined by the
length of time they have held the office of Assistant Secretary) shall exercise
the powers of the Secretary during that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
13
<PAGE> 18
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate 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. The 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.
7.2 Replacement of Lost or Destroyed Certificates. The board of directors
may direct a new certificate or certificates to be issued in place of a
certificate or certificates theretofore issued by the Corporation and alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or certificates representing shares 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 with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 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.
7.5 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 stock of the Corporation.
14
<PAGE> 19
7.6 Legends. The board of directors shall have the power and authority to
provide that certificates representing shares of stock bear such legends as the
board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of funds
of the Corporation legally available therefor such reserve or reserves as the
directors from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends, or to repair or maintain any property of
the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
board of directors; provided, that if such fiscal year is not fixed by the board
of directors and the selection of the fiscal year is not expressly deferred by
the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its
15
<PAGE> 20
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or through a
proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting of
the stockholders, 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 (acting for themselves or
through a proxy) 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 the holders of all shares entitled to vote thereon were present and voted
and shall be 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. Every written consent of stockholders
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 days of the earliest dated consent delivered in the
manner required by this Section 8.9(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are 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, principal place
of business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
16
<PAGE> 21
(b) Unless otherwise restricted by the certificate of incorporation of the
Corporation or by these bylaws, any action required or permitted to be taken at
a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage, or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the stockholders or by the board of directors at any
regular meeting or special meeting or written consent of the stockholders or the
board of directors.
17
<PAGE> 22
The undersigned, being the Assistant Secretary of the Corporation, hereby
certifies that the foregoing bylaws were adopted by the consent of the sole
stockholder of the Corporation as of _____________, 1997.
/s/ Eric W. Neumann
------------------------------------
Eric W. Neumann, Assistant Secretary
18
<PAGE> 1
EXHIBIT 3.52
State of Delaware PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "RIVERSIDE BROADCASTING CO., INC.", CHANGING ITS NAME FROM
"RIVERSIDE BROADCASTING CO., INC." TO "CHANCELLOR MEDIA/RIVERSIDE BROADCASTING
CO., INC.", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 1997,
AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED
TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
-----------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8709865
DATE: 10-20-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RIVERSIDE BROADCASTING CO., INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Riverside Broadcasting Co., Inc. ("Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA/RIVERSIDE BROADCASTING CO, INC."
SECOND. The Registered Agent of the Corporation is:
THE CORPORATION TRUST COMPANY
1209 Orange Street
Wilmington, Delaware 19801
2. The Sole Director and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair,
its Vice President, on this 17 day of October, 1997.
RIVERSIDE BROADCASTING CO., INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-----------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
State of Delaware PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "RIVERSIDE BROADCASTING CO., INC." IS DULY INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE
EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE THIRTIETH DAY OF
JUNE, A.D. 1997.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ EDWARD J. FREEL
-----------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8536309
DATE: 06-30-97
<PAGE> 4
HUGHREED NYK
1 0073 COLLECT ALBANY NEW YORK 05-10 0500A EST
HUGHES HUBBARD AND REED
ONE WALL ST ATTN MS JULIE SPIEGEL
NEW YORK CITY N Y
BT
AS OF THE CLOSE OF BUSINESS MAY 6 1980 RIVERSIDE BROADCASTING CO INC IS A
DELAWARE CORPORATION AUTHORIZED FEB 23 1971 AND SO FAR AS INDICATED BY THE
RECORDS OF THIS DEPARTMENT NO CERTIFICATE OF SURRENDER OF AUTHORITY HAS BEEN
FILED
SEARCHING UNIT CORP DIVN DEPT STATE
I PMTING NYK
<PAGE> 5
[SEAL]
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, GLENN C. KENTON SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY that the Certificate of Incorporation of the
"Riverside Broadcasting Co., Inc.", was received and filed in this office the
sixteenth day of February, A.D. 1971, at 10 o'clock A.M.
And I do hereby further certify that the aforesaid Corporation is duly
incorporated under the laws of the State of Delaware and is in good standing
and has a legal corporate existence so far as the records of this office show
and is duly authorized to transact business.
And I do hereby further certify that the Franchise Taxes have been paid
to date.
<PAGE> 6
GOOD STANDING CERTIFICATE FOR
RIVERSIDE BROADCASTING CO.,INC. (DE)
------------------------------------
<PAGE> 7
2/16/71
CERTIFICATE OF INCORPORATION
----------------------------
<PAGE> 8
REC B107 PAGE 222
STATE OF DELAWARE
[SEAL]
Office of Secretary State.
I, EUGENE BUNTING, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY OF
Certificate of Incorporation of the "RIVERSIDE BROADCASTING CO., INC.", as
received and filed in this office the sixteenth day of February, A.D. 1971, at
10 o'clock A.M.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND
AND OFFICIAL SEAL AT DOVER THIS sixteenth DAY OF
February IN THE YEAR OF OUR LORD ONE THOUSAND
NINE HUNDRED AND seventy-one.
[SEAL] /s/ EUGENE BUNTING
------------------------------------------
Secretary of State
/s/ R. H. [ILLEGIBLE]
------------------------------------------
Asst Secretary of State
REC'D FOR RECORD FEB 16 1971 LEO J. DUGAN, Jr. Recorder
<PAGE> 9
CERTIFICATE OF INCORPORATION
OF
RIVERSIDE BROADCASTING CO., INC.
ARTICLE I
The name of the corporation is Riverside Broadcasting Co., Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 100 West Tenth Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at that address is The Corporation
Trust Company.
ARTICLE III
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.
ARTICLE IV
The total number of shares of capital stock which the Corporation has
authority to issue is one thousand shares of common stock of the par value of
$1 per share.
ARTICLE V
The name and mailing address of the incorporator is Lawrence R. Uhlick,
45 East 89th Street, New York, N.Y. 10028.
<PAGE> 10
ARTICLE VI
The names and addresses of the persons who are to serve as directors of
the Corporation until first annual meeting of stockholders or until their
successors are elected and qualify are set forth below:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Edwin Deane Leonard 1148 Fifth Avenue
Apartment 4-C
New York, New York 10028
Lawrence R. Uhlick 45 East 89th Street
New York, New York 10028
Jeffrey Small 64-02 192 Street
Fresh Meadow, New York 11365
</TABLE>
ARTICLE VII
The Board of Directors of the Corporation is expressly authorized to
make, alter, amend or repeal the By-Laws of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 11th day
of February, 1971.
/s/ LAWRENCE R. UHLICK
--------------------------------
Lawrence R. Uhlick
-2-
<PAGE> 11
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this llth day of February, 1971, there personally came before me
Lawrence R. Uhlick, the person who executed the foregoing certificate, known to
me personally to be such, and he duly executed said certificate before me and
acknowledged that it was his act and deed and that the facts stated therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/ MARY O'DONNELL
--------------------------------
[SEAL]
<PAGE> 12
CERTIFICATE OF INCORPORATION
OF
RIVERSIDE BROADCASTING CO., INC.
ARTICLE I
The name of the corporation is Riverside Broadcasting Co., Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 100 West Tenth Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at that address is The Corporation
Trust Company.
ARTICLE III
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.
ARTICLE IV
The total number of shares of capital stock which the Corporation has
authority to issue is one thousand shares of common stock of the par value of
$1 per share.
ARTICLE V
The name and mailing address of the incorporator is Lawrence R. Uhlick,
45 East 89th Street, New York, N. Y. 10028.
<PAGE> 13
ARTICLE VI
The names and addresses of the persons who are to serve as directors of
the Corporation until the first annual meeting of stockholders or until their
successors are elected and qualify are set forth below:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Edwin Deane Leonard 1148 Fifth Avenue
Apartment 4-C
New York, New York 10028
Lawrence R. Uhlick 45 East 89th Street
New York, New York 10028
Jeffrey Small 64-02 192 Street
Fresh Meadow, New York 11365
</TABLE>
ARTICLE VII
The Board of Directors of the Corporation is expressly authorized to
make, alter, amend or repeal the By-Laws of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this llth day
of February, 1971.
/s/ LAWRENCE R. UHLICK
--------------------------------
Lawrence R. Uhlick
-2-
<PAGE> 14
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 11th day of February, 1971, there personally came before me
Lawrence R. Uhlick, the person who executed the foregoing certificate, known to
me personally to be such, and he duly executed said certificate before me and
acknowledged that it was his act and deed and that the facts stated therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/ Mary O'Donnell
--------------------------------
<PAGE> 15
STATE OF DELAWARE
[SEAL]
Office of Secretary State.
I, EUGENE BUNTING, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY OF
Certificate of Incorporation of the "RIVERSIDE BROADCASTING CO., INC.", as
received and filed in this office the sixteenth day of February, A.D. 1971, at
10 o'clock A.M.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND
AND OFFICIAL SEAL AT DOVER THIS sixteenth DAY OF
February IN THE YEAR OF OUR LORD ON THOUSAND
NINE HUNDRED AND seventy-one.
[SEAL] /s/ EUGENE BUNTING
------------------------------------------
Secretary of State
/s/ [ILLEGIBLE]
------------------------------------------
Ass't Secretary of State
<PAGE> 16
CERTIFICATE OF INCORPORATION OF
RIVERSIDE BROADCASTING CO.,INC. (DE)
-----------------------------------
<PAGE> 17
RIVERSIDE BROADCASTING CO., INC.
Consent of Directors
The undersigned, being all the Directors of Riverside Broadcasting Co.,
Inc., a Delaware corporation, do hereby give their consent, pursuant to Section
141(f) of the General Corporation Law of the State of Delaware, to the
following resolutions:
1. Adoption of By-Laws
RESOLVED, that the By-Laws in the form attached as Exhibit 1 to
this consent are hereby adopted as the By-Laws of the Company.
2. Corporate Seal
RESOLVED, that the seal, an impression of which is hereto
affixed, is hereby adopted as the corporate seal of the Corporation.
3. Corporate Books
RESOLVED, that the Secretary of the Corporation is hereby
authorized and directed to obtain the proper corporate books.
4. Corporate Stock Certificates
RESOLVED, that the form of certificate for shares of Common Stock
of the Corporation (par value $1 per share) in the form attached as
Exhibit 2 to this consent is hereby approved and adopted as the
certificate to represent shares of the Common Stock of the Corporation
(par value $1 per share).
5. Authorization to Issue Shares
RESOLVED, that the proper officers of the Corporation are hereby
authorized to issue up to 1,000 shares of the
<PAGE> 18
Common Stock ($1 par value) of this Corporation to and only to The
Riverside Church in the City of New York, Riverside Drive at 122nd
Street, New York, New York 10027.
6. Banking Arrangements
RESOLVED, "that FIRST NATIONAL CITY BANK, New York (hereinafter
called the "Bank") be and hereby is designated a depository of the funds
of this Corporation, and the President singly or the Treasurer singly is
hereby authorized to sign, for and on behalf of this Corporation, any
and all checks, drafts and other orders with respect to any funds at any
time to the credit of this Corporation with the Bank and/or against any
account(s) of this Corporation maintained at any time with the Bank,
inclusive of any such checks, drafts and other orders in favor of either
of the above-designated officers, and that the Bank be and hereby is
authorized (a) to pay the same to the debit of any account(s) of this
Corporation then maintained with it; (b) to receive for deposit to the
credit of this Corporation, and/or for collection for the account of
this Corporation, any and all checks, drafts, notes and other
instruments for the payment of money, whether or not endorsed by this
Corporation, which may be submitted to it for such deposit and/or
collection, it being understood that each such item shall be deemed to
have been unqualifiedly endorsed by this Corporation, and (c) to
receive, as the act of this Corporation, any and all stop-payment
instructions (inclusive of any relative agreement) with respect to any
such checks, drafts and other orders as aforesaid and reconcilement(s)
of account when signed by any one or more of the officers as
hereinbefore designated.
That the President singly or the Treasurer singly is hereby
authorized, for and on behalf of this Corporation, to transact any and
all other business with or through the Bank which at any time may be
deemed by the said officers transacting the same to be advisable,
including, without limiting the generality of the foregoing, authority
to: (a) discount and/or negotiate notes, drafts and other commercial
paper; (b) apply for letters or other forms of credit; (c) borrow money,
with or without security; (d) assign, transfer, pledge or otherwise
hypothecate any property of the Corporation; (e) purchase, exchange,
sell, or otherwise deal in or with any stocks, bonds and other
securities; (f) execute and deliver automated customer services and
other agreements relative to performance of
-2-
<PAGE> 19
various computer services; and (g) in reference to any of the business
or transactions hereinbefore referred to, make, enter into, execute and
deliver to the Bank such negotiable or non-negotiable instruments,
indemnity and other agreements, obligations, assignments, endorsements,
hypothecations, pledges, receipts and/or other documents as may be deemed
by the officers so acting to be necessary or desirable.
That any and all withdrawals of money and/or other transactions
heretofore had in behalf of this Corporation with the Bank are hereby
ratified, confirmed and approved, and that the Bank (and any interested
third party) may rely upon the authority conferred by this entire
resolution unless, and except to the extent that, this resolution shall
be revoked or modified by a subsequent resolution of this Board, and
until a certified copy of such subsequent resolution has been received
by the Bank.
7. Payment of Incorporation Expenses
RESOLVED, that the proper officers of the Corporation are hereby
authorized to pay all expenses incurred in connection with the
organization and incorporation of the Corporation.
8. Election of Officers
RESOLVED, that the following persons are hereby elected officers
of the Company until their respective successors are elected and shall
have qualified:
<TABLE>
<CAPTION>
Name Office
---- ------
<S> <C>
Dr. Victor Z. Brink President
Rumsey M. McGregor Vice President and
Assistant Secretary
Warde B. Ogden Vice President and
Treasurer
Paul H. Sherry Secretary and Assistant
Treasurer
Stephen A. Feke Assistant Secretary
</TABLE>
9. Acceptance of Radio License
RESOLVED, that the proper officers of the Corporation are hereby
authorized to accept as a capital contribution
-3-
<PAGE> 20
from the Riverside Church in the City of New York all right, title and
interest in the radio station WRVR and the license issued by the Federal
Communications Commission with respect thereto, and all authority to
operate such station and license, subject to and effective upon the
approval of such transfer by the Federal Communications Commission.
10. Number of Directors
RESOLVED, that the Board of Directors shall consist shall of four
members.
11. Election of Directors
RESOLVED, that the resignations of Edwin Deane Leonard, Jeffrey
Small and Lawrence Uhlick as Directors of the Company effective
immediately are hereby accepted and the following persons are hereby
elected Directors of the Company until their respective successors are
elected and shall have qualified:
Dr. Victor Z. Brink
Warde B. Ogden
Rumsey M. McGregor
Paul H. Sherry.
IN WITNESS WHEREOF, we have set our hands this 12th day of March, 1971.
/s/ EDWIN DEANE LEONARD
-----------------------------
Edwin Deane Leonard
/s/ JEFFREY SMALL
-----------------------------
Jeffrey Small
/s/ LAWRENCE UHLICK
-----------------------------
Lawrence Uhlick
-4-
<PAGE> 1
EXHIBIT 3.53
BY-LAWS
of
RIVERSIDE BROADCASTING CO., INC.
(A Delaware Corporation)
Article I - Offices
Section 1. The office of the Corporation shall be located in New York
City.
Section 2. The Corporation may also have offices at such other places
as the Board of Directors from time to time determine or the business may
require.
Article II - Stock
Section 1. Transfers of stock shall be made only upon the books of the
Corporation, and before a new certificate is issued the old certificate must be
surrendered for cancellation.
Article III - Stockholders
Section 1. The Annual Meeting of the stockholders shall be held on the
third Tuesday in May of each year, unless such day shall be a legal holiday, in
which event the Annual Meeting shall be held on the next succeeding day which is
<PAGE> 2
not a legal holiday. The Annual Meeting shall be held in New York City, or at
such place as may be designated by the Board of Directors.
Section 2. Special Meetings of the stockholders may be called at the
principal office of the Corporation or at such place as may be designated by the
Board of Directors at any time by action of said Board or upon written request
of stockholders holding one-fourth of the stock then outstanding entitled to
vote.
Section 3. Notice of Meetings, written or printed, for every regular or
special meeting of the stockholders, shall be prepared and mailed to the last
known post office address of each stockholder not less than ten days before any
such meeting. Unless otherwise directed by the Board of Directors, no Notice of
Meeting, regular or special, need state the object or objects thereof.
Section 4. A quorum at any meeting of the stockholders shall consist of
those persons representing in person or by proxy not less than a majority of the
voting stock of the Corporation.
Section 5. All elections and all other questions shall be decided by a
majority of the voting stock represented at the meeting, except as otherwise
provided
2
<PAGE> 3
by statute or the Certificate of Incorporation. The Election of Directors shall
be held at the annual meeting of stockholders.
Article IV - Directors
Section 1. The Business and Property of the Corporation shall be
managed by a Board of not less than three nor more than nine Directors,
hereinafter termed the Board. Directors shall be at least twenty-one years of
age and need not be residents of the State of Delaware nor New York, nor
stockholders of the Corporation. The Directors shall be elected annually, and
shall hold office until their successors are elected and qualify. Any vacancies
may be filled by the Board for the unexpired terms. Directors may receive
compensation for their services in such amounts and under such conditions as the
Board may from time to time determine.
Section 2. The Regular Meetings of the Board shall be held without
further notice in New York City at such times as the Board of Directors may
provide by resolution. It is provided, however, that a regular meeting shall be
held each year immediately after the Annual Meeting of the stockholders.
3
<PAGE> 4
Section 3. Special Meetings of the Board may be called at any time by
the President or by any two members of the Board, or may be held at any time and
place, without notice, by unanimous written consent of all the members, or by
the presence of all members at such a meeting.
Section 4. Notices of Special Meetings shall be mailed by the secretary
to each member of the Board not less than three days before such meeting, and
shall state the purpose thereof. No notice to or waiver by any Director with
respect to any special meeting shall be required if such director shall be
present at said meeting.
Section 5. One-third of the entire Board shall constitute a quorum at
any meeting of the Board except upon questions relating to the removal of an
officer. A majority of the members present shall decide any questions that come
before the meeting, except that the removal of an officer shall require the
affirmative vote of a majority of the entire Board.
Section 6. Officers of the Corporation shall be elected by ballot by
the Board at its first meeting after the election of Directors each year. An
officer may be removed at any time by majority vote of all the Directors
4
<PAGE> 5
with or without cause at any meeting of the Board, provided that no such removal
can be made at such meeting unless the notice thereof specifies such removal as
one of the matters which will be brought up for consideration at said meeting.
If any office becomes vacant or a new office is created during the year, the
Board shall fill the same for the unexpired term. The Board shall have the power
to engage such employees as it desires, and to fix the compensation of the
officers and employees of the Corporation, or it may delegate these powers to
individuals if it desires.
Article V - Officers
Section 1. The officers of the Corporation shall be a President, one or
more Vice Presidents, a Treasurer and a Secretary. The Board may also designate
Assistant Secretaries and Assistant Treasurers. The President shall be a
Director. No other officers need be Directors. The number of Vice Presidents
shall be determined by the Board. The officers shall be elected annually, and
shall hold office until their successors are elected and qualify.
Section 2. Each officer shall perform the duties and exercise the
powers usually incident to his
5
<PAGE> 6
office and such other duties as may be assigned to him by the Board.
Article VI - Indemnification
Section 1. The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of Delaware, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, disabilities, or other matters referred to
in or covered by said section.
Article VII - Dividends and Finance
Section 1. Dividends shall be declared only from the surplus profits at
such times as the Board shall direct, and no dividend shall be declared that
will impair the capital of the Corporation.
Section 2. The moneys of the Corporation shall be deposited in the name
of the Corporation in such bank or banks as the Board shall designate, and shall
be drawn out only by check signed by such person or persons as the Board may
designate.
6
<PAGE> 7
Article VIII - Corporate Seal
Section 1. The Corporate Seal shall have inscribed thereon the name of
the Corporation, the year of incorporation, and the words, "Corporate Seal
Delaware" and such seal, as impressed on the margin hereof, is adopted as the
Corporate Seal of the Corporation. The seal 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 By-Laws may be amended, repealed or altered, in whole
or in part, by a majority vote of the entire outstanding stock of the
Corporation, at any regular meeting of the stockholders, or at any special
meeting where such action has been announced in the call and notice of such
meeting.
Section 2. The Board of Directors may amend the By-Laws by a majority
vote of the entire Board but shall not repeal any By-Laws made by the
stockholders of this Corporation.
7
<PAGE> 8
TO THE BOARD OF DIRECTORS OF
RIVERSIDE BROADCASTING CO., INC.
The undersigned hereby resign as Riverside Broadcasting Co., Inc.
effective immediately.
Dated: March 12, 1971
/s/ EDWIN DEANE LEONARD
--------------------------------------
Edwin Deane Leonard
/s/ JEFFREY SMALL
--------------------------------------
Jeffrey Small
/s/ LAWRENCE UHLICK
--------------------------------------
Lawrence Uhlick
<PAGE> 1
EXHIBIT 3.54
PAGE 1
State of Delaware
Office of the Secretary of State
---------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WLTW LICENSE CORP.", FILED IN THIS OFFICE ON THE
TWENTY-EIGHTH DAY OF MAY, A.D. 1997, AT 12:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SECRETARY'S OFFICE /s/ Edward J. Freel
OF DELAWARE -----------------------------------
SEAL] Edward J. Freel, Secretary of State
2755442 8100 AUTHENTICATION: 8483677
971172795 DATE: 05-28-97
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
WLTW LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WLTW LICENSE CORP.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of
New Castle. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock, par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options of warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issues, sold or offered for sale by the Corporation; provided, however, that in
<PAGE> 3
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation, as amended from time to time.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sonja K. Gruhl
Latham & Watkins
1001 Pennsylvania Avenue, NW
Suite 1300
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transactions from which the director derived an improper personal
benefit.
<PAGE> 4
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 28th day on May, 1997.
/s/ Sonja K. Gruhl
---------------------------
Sonja K. Gruhl
Incorporator
<PAGE> 1
EXHIBIT 3.55
BY-LAWS
OF
WLTW LICENSE CORP.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETING OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholders' Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 4
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 6
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 8
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 8
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 13
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 13
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Payment of Dividends; Directors' Duties . . . . . . . . . . . . 15
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 16
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 17
</TABLE>
iii
<PAGE> 5
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
1
<PAGE> 6
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 7
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 8
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 9
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 10
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 11
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 12
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 13
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 14
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 15
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of
the Secretary, 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.
Section 11. 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
11
<PAGE> 16
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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 17
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 18
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to another action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 19
other person, whether or not it shall have express or other notice thereof,
save as expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 20
Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
16
<PAGE> 21
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 22
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and acting Secretary of WLTW License
Corp., a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
May 29, 1997.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 29th day of
May, 1997.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
18
<PAGE> 1
EXHIBIT 3.56
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CHANCELLOR MEDIA/WMZQ INC.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY" UNDER
THE NAME OF "CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE EIGHTH DAY OF JULY, A.D. 1998, AT 4:30 0'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188937
DATE: 07-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA/WMZQ INC.
INTO
CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media/WMZQ Inc. Delaware
Chancellor Media Corporation of the Capital City Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties
to the merger has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with the requirements of
Section 251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Capital City.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Capital City shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 3
Dated: July 8, 1998
CHANCELLOR MEDIA CORPORATION OF
THE CAPITAL CITY
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 4
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA/WMZQ INC.
INTO
CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY
The undersigned corporation, organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media/WMZQ Inc. Delaware
Chancellor Media Corporation of the Capital City Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties
to the merger has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with the requirements of
Section 251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is
Chancellor Media Corporation of the Capital City.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Capital City shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is 433
E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 5
Dated: July 8, 1998
CHANCELLOR MEDIA CORPORATION OF
THE CAPITAL CITY
By: /s/ Andrea Hulcy
---------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 6
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHANCELLOR MEDIA CORPORATION OF THE NATION'S CAPITAL", A DELAWARE
CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY" UNDER THE
NAME OF "CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE EIGHTH DAY OF JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188201
DATE: 07-10-98
<PAGE> 7
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE NATION'S CAPITAL
INTO
CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of the Nation's Capital Delaware
Chancellor Media Corporation of the Capital City Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Capital City.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Capital City shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 433 E. Las
Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 8
Dated: July 8, 1998
CHANCELLOR MEDIA CORPORATION OF
THE CAPITAL CITY
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 9
CERTIFICATE OF MERGER
OF
CHANCELLOR MEDIA CORPORATION OF THE NATION'S CAPITAL
INTO
CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Chancellor Media Corporation of the Nation's Capital Delaware
Chancellor Media Corporation of the Capital City Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Corporation of the Capital City.
FOURTH: The Certificate of Incorporation of Chancellor Media
Corporation of the Capital City shall be the Certificate of Incorporation of
the surviving corporation, to remain unchanged until amended in accordance with
the provisions thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 433 E. Las
Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 10
Dated: July 8, 1998
CHANCELLOR MEDIA CORPORATION OF
THE CAPITAL CITY
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 11
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EVERGREEN MEDIA CORPORATION OF THE CAPITAL CITY", CHANGING ITS NAME FROM
"EVERGREEN MEDIA CORPORATION OF THE CAPITAL CITY" TO "CHANCELLOR MEDIA
CORPORATION OF THE CAPITAL CITY", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY
OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
--------------------------------------
[SEAL] Edward J. Freel, Secretary of State
AUTHENTICATION: 8710105
DATE: 10-20-97
<PAGE> 12
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE CAPITAL CITY
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Evergreen Media Corporation of the Capital City (the "Corporation"),
a Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA CORPORATION OF THE CAPITAL CITY"
2. The Sole Director and Sole Shareholder of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
EVERGREEN MEDIA CORPORATION
OF THE CAPITAL CITY,
a Delaware Corporation
By: /s/ Omar Choucair
------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 13
State of Delaware PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF "EVERGREEN MEDIA
CORPORATION OF THE BAY STATE", CHANGING ITS NAME FROM "EVERGREEN
MEDIA CORPORATION OF THE BAY STATE" TO "EVERGREEN MEDIA
CORPORATION OF THE CAPITAL CITY", FILED IN THIS OFFICE ON THE
SEVENTH DAY OF NOVEMBER, A.D. 1996, AT 4:30 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8204047
DATE: 11-21-96
<PAGE> 14
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE BAY STATE
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Evergreen Media Corporation of the Bay State (the "Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"EVERGREEN MEDIA CORPORATION OF THE CAPITAL CITY"
2. The Board of Directors and Stockholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
vice president, on this 7th day of November, 1996.
EVERGREEN MEDIA CORPORATION
OF THE BAY STATE, a Delaware
corporation
By: /s/ Omar Choucair
-------------------------
Omar Choucair
Vice President
<PAGE> 15
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF INCORPORATION OF "EVERGREEN MEDIA
CORPORATION OF THE BAY STATE", FILED IN THIS OFFICE ON THE
TWENTY-FOURTH DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
[SEAL] ------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8204046
DATE: 11-21-96
<PAGE> 16
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE BAY STATE
FIRST: The name of the corporation (hereinafter sometimes
referred to as the "Corporation") is:
Evergreen Media Corporation of the Bay State
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
be issued, sold or offered for sale by the Corporation; provided, however, that
in connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 17
At all times, each holder of common stock of the Corporation
shall be entitled to one vote for each share of common stock held by such
stockholder standing in the name of such stockholder on the books of the
Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provisions contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by the law of the State of Delaware.
All rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 18
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, herein
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 23rd day of
October, 1995.
/s/ Sylvia L. Adams
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 19
State of Delaware PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE
OF INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF THE BAY STATE", FILED IN
THIS OFFICE ON THE TWENTY-FOURTH DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7924072
DATE: 04-26-96
<PAGE> 20
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE BAY STATE
FIRST: The name of the corporation (hereinafter sometimes
referred to as the "Corporation") is:
Evergreen Media Corporation of the Bay State
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
be issued, sold or offered for sale by the Corporation; provided, however, that
in connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 21
At all times, each holder of common stock of the Corporation
shall be entitled to one vote for each share of common stock held by such
stockholder standing in the name of such stockholder on the books of the
Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provisions contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by the law of the State of Delaware.
All rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 22
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, herein
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 23rd day of
October, 1995.
/s/ Sylvia L. Adams
------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 23
PAGE 1
State Of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "EVERGREEN MEDIA CORPORATION OF THE BAY STATE", FILED IN THIS
OFFICE ON THE TWENTY-FOURTH DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SEAL] ---------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7686766
DATE: 10-25-95
<PAGE> 24
CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION OF THE BAY STATE
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Evergreen Media Corporation of the Bay State
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 25
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 26
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 23rd day of October, 1995.
/s/ Sylvia L. Adams
---------------------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.57
BY-LAWS
OF
EVERGREEN MEDIA CORPORATION OF THE CAPITAL CITY
(f/k/a EVERGREEN MEDIA CORPORATION OF THE BAY STATE)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting of Stockholders . . . . . . . . . . . . . . . . . 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof . . . . . . . . . 1
Section 4. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Notice of Stockholder's Meetings . . . . . . . . . . . . . . . . 3
Section 8. Maintenance and Inspection of Stockholder List . . . . . . . . 3
Section 9. Stockholder Action by Written Consent Without a Meeting . . . . 3
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. The Number of Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Place of Directors' Meetings . . . . . . . . . . . . . . . . . 5
Section 5. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 9. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . 6
Section 10. Committees of Directors . . . . . . . . . . . . . . . . . . . . 7
Section 11. Minutes of Committee Meetings . . . . . . . . . . . . . . . . . 7
Section 12. Compensation of Directors . . . . . . . . . . . . . . . . . . . 7
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Compensation of Officers . . . . . . . . . . . . . . . . . . . 9
Section 5. Term of Office; Removal and Vacancies . . . . . . . . . . . . . 9
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Signatures on Certificates . . . . . . . . . . . . . . . . . . 12
Section 3. Statement of Stock Rights, Preferences, Privileges . . . . . . 12
Section 4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Transfers of Stock . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Payment of Dividends; Directors Duties . . . . . . . . . . . . 14
Section 3. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Manner of Giving Notice . . . . . . . . . . . . . . . . . . . . 15
Section 7. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Amendment by Directors or Stockholders . . . . . . . . . . . . 15
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from
1
<PAGE> 5
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. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be
called by the President or the Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of
stockholders
2
<PAGE> 6
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. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required to
be taken at any
3
<PAGE> 7
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the Board of Directors at any
meeting of stockholders by a majority of the stock represented and entitled to
vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and
4
<PAGE> 8
until their successors are duly elected and shall qualify, unless sooner
replaced by a vote of the shareholders. If there are no directors in office,
then an election of directors may be held in the manner provided by statute.
If, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
5
<PAGE> 9
Section 7. Quorum. At all meetings of the Board of Directors a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement
of merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each
7
<PAGE> 11
[ILLEGIBLE]
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
8
<PAGE> 12
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders and, in the
absence of the
9
<PAGE> 13
Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. He shall be an ex-officio member of all committees and shall have
the general powers and duties of management usually vested in the office of
President and Chief Executive Officer of corporations, and shall have such
other powers and duties as may be prescribed by the Board of Directors of these
By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the
10
<PAGE> 14
absence or disability of the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, 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.
11
<PAGE> 15
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Signatures of Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
12
<PAGE> 16
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,
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 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, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to another action. 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.
13
<PAGE> 17
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by the
laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
14
<PAGE> 18
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
15
<PAGE> 19
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Evergreen Media
Corporation of the Bay State, a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
October 25, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 25th day of
October, 1995.
/s/ SCOTT K. GINSBURG
---------------------------------
Scott K. Ginsburg, Secretary
16
<PAGE> 1
Exhibit 3.58
CERTIFICATE OF MERGER
OF
WMZQ LICENSE CORP.
INTO
CHANCELLOR MEDIA D.C. LICENSE CORP.
The undersigned corporation, organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST. That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
WMZQ License Corp. Delaware
Chancellor Media D.C. License Corp. Delaware
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
D.C. License Corp.
FOURTH: The Certificate of Incorporation of Chancellor Media D.C.
License Corp. shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 2
Dated: July 8, 1998
CHANCELLOR MEDIA D.C. LICENSE CORP.
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 3
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"WMZQ LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA D.C. LICENSE CORP." UNDER THE NAME OF
"CHANCELLOR MEDIA D.C. LICENSE CORP.", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE
THE EIGHTH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE STATE OF DELAWARE]
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188200
DATE: 07-10-98
<PAGE> 4
CERTIFICATE OF MERGER
OF
WMZQ LICENSE CORP.
INTO
CHANCELLOR MEDIA D.C. LICENSE CORP.
The undersigned corporation, organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
WMZQ License Corp. Delaware
Chancellor Media D.C. License Corp. Delaware
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
D.C. License Corp.
FOURTH: The Certificate of Incorporation of Chancellor Media D.C.
License Corp. shall be the Certificate of Incorporation of the surviving
corporation, to remain unchanged until amended in accordance with the provisions
thereof and of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 433 E. Las Colinas
Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 5
Dated: July 8, 1998
CHANCELLOR MEDIA D.C. LICENSE CORP.
BY: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 6
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"WWRC LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA D.C. LICENSE CORP." UNDER THE NAME OF
"CHANCELLOR MEDIA D.C. LICENSE CORP.", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE
THE EIGHTH DAY OF JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE STATE OF DELAWARE]
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188199
DATE: 07-10-98
<PAGE> 7
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WGAY LICENSE CORP.", CHANGING ITS NAME FROM "WGAY LICENSE CORP."
TO "CHANCELLOR MEDIA D.C. LICENSE CORP.", FILED IN THIS OFFICE ON THE THIRD DAY
OF JUNE, A.D. 1998, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE STATE OF DELAWARE]
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9116323
DATE: 06-03-98
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WGAY LICENSE CORP.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, WGAY License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA D.C. LICENSE CORP."
2. The Directors and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Andrea Hulcy, its
Vice President, on this 3rd day of June, 1998.
WGAY LICENSE CORP.,
a Delaware Corporation
By: /s/ Andrea Hulcy
--------------------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 9
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "WKLB LICENSE CORP.", CHANGING ITS NAME FROM "WKLB LICENSE CORP."
TO "WGAY LICENSE CORP.", FILED IN THIS OFFICE ON THE SEVENTH DAY OF NOVEMBER,
A.D. 1996, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
2554731 8100 Edward J. Freel, Secretary of State
960325867 AUTHENTICATION: 8186397
DATE: 11-12-96
<PAGE> 10
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WKLB LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, WKLB License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"WGAY LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
vice president, on this 7th day of November, 1996.
WKLB LICENSE CORP.,
a Delaware corporation
By: /s/ Omar Choucair
-----------------------
Omar Choucair
Vice President
<PAGE> 11
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WKLB LICENSE CORP.,", CHANGING ITS NAME FROM "WKLB LICENSE CORP." TO "WGAY
LICENSE CORP.", FILED IN THIS OFFICE ON THE SEVENTH DAY OF NOVEMBER, A.D. 1996,
AT 4:30 O'CLOCK P.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8204052
DATE: 11-21-96
<PAGE> 12
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WKLB LICENSE CORP.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, WKLB License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"WGAY LICENSE CORP."
2. The Board of Directors and Stockholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
vice president, on this 7th day of November, 1996.
WKLB LICENSE CORP.,
a Delaware corporation
By: /s/ Omar Choucair
-----------------------
Omar Choucair
Vice President
<PAGE> 13
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WKLB LICENSE CORP.", FILED IN THIS OFFICE ON THE TWENTY-FOURTH
DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8204051
DATE: 11-21-96
2554731 8100
960340841
<PAGE> 14
CERTIFICATE OF INCORPORATION
OF
WKLB LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WKLB License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the Board
of Directors of the Corporation may, in its sole discretion, offer such shares
or securities, or any part thereof, for purchase or subscription by the holders
of shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
<PAGE> 15
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 16
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 23rd day of October, 1995.
/s/ Sylvia L. Adams
----------------------------
Sylvia L. Adams
Incorporator
3
<PAGE> 17
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WKLB LICENSE CORP.", FILED IN THIS OFFICE THE TWENTY-FOURTH
DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7686811
DATE: 10-25-95
2554731 8100
950244679
<PAGE> 18
CERTIFICATE OF INCORPORATION
OF
WKLB LICENSE CORP.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
WKLB License Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or offered for sale by the Corporation; provided, however, that in
connection with the issuance or sale of any such shares or securities, the
Board of Directors of the Corporation may, in its sole discretion, offer such
shares or securities, or any part thereof, for purchase or subscription by the
holders of shares of the Corporation, except as may otherwise be provided by
this Certificate of Incorporation as from time to time amended.
<PAGE> 19
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Sylvia L. Adams
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change
or repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
2
<PAGE> 20
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 23rd day of October, 1995.
/s/ Sylvia L. Adams
_____________________
Sylvia L. Adams
Incorporator
3
<PAGE> 1
EXHIBIT 3.59
BY-LAWS
OF
WGAY LICENSE CORP.
(f/k/a WKLB LICENSE CORP.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES....................................................................1
Section 1. Registered Office......................................................1
Section 2. Other Offices..........................................................1
ARTICLE II - MEETINGS OF STOCKHOLDERS..................................................1
Section 1. Place of Meetings......................................................1
Section 2. Annual Meeting of Stockholders.........................................1
Section 3. Quorum; Adjourned Meetings and Notice Thereof..........................1
Section 4. Voting.................................................................2
Section 5. Proxies................................................................2
Section 6. Special Meetings.......................................................2
Section 7. Notice of Stockholder's Meetings.......................................3
Section 8. Maintenance and Inspection of Stockholder List.........................3
Section 9. Stockholder Action by Written Consent Without a Meeting................3
ARTICLE III - DIRECTORS................................................................4
Section 1. The Number of Directors................................................4
Section 2. Vacancies..............................................................4
Section 3. Powers.................................................................5
Section 4. Place of Directors' Meetings ..........................................5
Section 5. Regular Meetings.......................................................5
Section 6. Special Meetings.......................................................5
Section 7. Quorum.................................................................6
Section 8. Action Without Meeting.................................................6
Section 9. Telephonic Meetings....................................................6
Section 10. Committees of Directors................................................7
Section 11. Minutes of Committee Meetings..........................................7
Section 12. Compensation of Directors..............................................7
Section 13. Indemnification........................................................8
ARTICLE IV - OFFICERS..................................................................8
Section 1. Officers...............................................................8
Section 2. Election of Officers...................................................9
Section 3. Subordinate Officers...................................................9
Section 4. Compensation of Officers...............................................9
Section 5. Term of Office; Removal and Vacancies..................................9
Section 6. Chairman of the Board..................................................9
Section 7. President..............................................................9
Section 8. Vice Presidents.......................................................10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 9. Secretary.............................................................10
Section 10. Assistant Secretary...................................................10
Section 11. Treasurer.............................................................11
Section 12. Assistant Treasurer...................................................11
ARTICLE V - CERTIFICATES OF STOCK.....................................................12
Section 1. Certificates..........................................................12
Section 2. Signatures on Certificates............................................12
Section 3. Statement of Stock Rights, Preferences, Privileges....................12
Section 4. Lost Certificates.....................................................13
Section 5. Transfers of Stock....................................................13
Section 6. Fixing Record Date....................................................13
Section 7. Registered Stockholders...............................................14
ARTICLE VI - GENERAL PROVISIONS.......................................................14
Section 1. Dividends.............................................................14
Section 2. Payment of Dividends; Directors' Duties...............................14
Section 3. Checks................................................................14
Section 4. Fiscal Year...........................................................14
Section 5. Corporate Seal........................................................15
Section 6. Manner of Giving Notice...............................................15
Section 7. Waiver of Notice......................................................15
Section 8. Annual Statement......................................................15
ARTICLE VII - AMENDMENTS..............................................................15
Section 1. Amendment by Directors or Stockholders................................15
</TABLE>
ii
<PAGE> 4
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from
1
<PAGE> 5
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. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders
2
<PAGE> 6
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. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholder's Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, any action
required to be taken at any
3
<PAGE> 7
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the Board of Directors at any
meeting of stockholders by a majority of the stock represented and entitled to
vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and
4
<PAGE> 8
until their successors are duly elected and shall qualify, unless sooner
replaced by a vote of the shareholders. If there are no directors in office,
then an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
5
<PAGE> 9
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
6
<PAGE> 10
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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
7
<PAGE> 11
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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
8
<PAGE> 12
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders and, in the
absence of the
9
<PAGE> 13
Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be prescribed
for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
He shall keep in safe 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 Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by this signature.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the
10
<PAGE> 14
absence or disability of the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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 such determination, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
11
<PAGE> 15
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
12
<PAGE> 16
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,
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 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, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
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.
13
<PAGE> 17
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by the
laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
14
<PAGE> 18
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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,
15
<PAGE> 19
amendment, repeal or adoption of new By-Laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal By-Laws is conferred
upon the Board of Directors by the Certificate of Incorporation, it shall not
divest or limit the power of the stockholders to adopt, amend or repeal By-Laws.
16
<PAGE> 20
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of WKLB License
Corp., a Delaware corporation; and
(2) That the foregoing By-Laws, comprising sixteen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
October 25, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 25th
day of October, 1995.
/s/ SCOTT K. GINSBURG
-----------------------------------
Scott K. Ginsburg, Secretary
17
<PAGE> 1
EXHIBIT 3.60
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"KKBT LICENSE CORP.", A DELAWARE CORPORATION,
WITH AND INTO "CHANCELLOR MEDIA LICENSEE COMPANY" UNDER THE
NAME OF "CHANCELLOR MEDIA LICENSEE COMPANY", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE,
AS RECEIVED AND FILED IN THIS OFFICE THE EIGHTH DAY OF
JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9188212
DATE: 07-10-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
KKBT LICENSE CORP.
INTO
CHANCELLOR MEDIA LICENSEE COMPANY
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
KKBT License Corp. Delaware
Chancellor Media Licensee Company Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Licensee Company.
FOURTH: The Certificate of Incorporation of Chancellor Media Licensee
Company shall be the Certificate of Incorporation of the surviving corporation,
to remain unchanged until amended in accordance with the provisions thereof and
of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 433 E. Las
Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 3
Dated: July 8, 1998
CHANCELLOR MEDIA LICENSEE COMPANY
By: /s/ Andrea Hulcy
--------------------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 4
CERTIFICATE OF MERGER
OF
KKBT LICENSE CORP.
INTO
CHANCELLOR MEDIA LICENSEE COMPANY
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
KKBT License Corp. Delaware
Chancellor Media Licensee Company Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation is Chancellor Media
Licensee Company.
FOURTH: The Certificate of Incorporation of Chancellor Media Licensee
Company shall be the Certificate of Incorporation of the surviving corporation,
to remain unchanged until amended in accordance with the provisions thereof and
of applicable law.
FIFTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 433 E. Las
Colinas Blvd., Suite 1130, Irving, Texas 75039.
SIXTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving corporation on request and without cost to any
stockholder of any constituent corporation.
<PAGE> 5
Dated:_____________, 1998
CHANCELLOR MEDIA LICENSEE COMPANY
By: /s/ Andrea Hulcy
--------------------------
Andrea Hulcy
Vice President and Assistant Secretary
2
<PAGE> 6
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGES:
"CHANCELLOR COMMUNICATIONS OF SACRAMENTO LICENSEE, INC.", A DELAWARE
CORPORATION,
WITH AND INTO "CHANCELLOR BROADCASTING LICENSEE COMPANY" UNDER THE NAME OF
"CHANCELLOR BROADCASTING LICENSEE COMPANY", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE FIFTH DAY OF DECEMBER, A.D. 1995, AT 11:31 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7735508
DATE: 12-05-95
<PAGE> 7
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated November 16, 1995,
by and between Chancellor Communications of Sacramento Licensee, Inc., a
Delaware corporation ("Sacramento Licensee"), and Chancellor Broadcasting
Licensee Company, a Delaware corporation ("Broadcasting Licensee"). Sacramento
Licensee and Broadcasting Licensee are sometimes herein collectively referred to
as the "Constituent Corporations."
RECITALS:
WHEREAS, the Constituent Corporations desire to consolidate by means of a
merger (the "Merger") of Sacramento Licensee with and into Broadcasting
Licensee, with Broadcasting Licensee as the surviving corporation in such
Merger, all in accordance with the provisions of this Agreement; and
WHEREAS, the respective Boards of Directors and stockholders of Sacramento
Licensee and Broadcasting Licensee have approved this Agreement and the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the provisions of the General Corporation Law of
the State of Delaware, as amended (the "DGCL"), Sacramento Licensee shall be
merged with and into Broadcasting Licensee as of the Effective Time (as
hereinafter defined). Following the Merger, the separate existence of
Sacramento Licensee shall cease, and Broadcasting Licensee shall continue as
the surviving corporation in the Merger (the "Surviving Corporation").
SECTION 1.2. Effect of the Merger. The Merger shall have the affects set
forth in Section 259 of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, except as otherwise
provided herein, all the property, rights, privileges, powers and franchises
of the Constituent Corporations shall vest in the Surviving Corporation, and
all debts, liabilities and duties of the Constituent Corporations shall become
the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.3. Certificate of Incorporation of the Surviving Corporation. At
the Effective Time and without any further action on the part of the
Constituent Corporations, the Certificate of Incorporation of Broadcasting
Licensee shall be the Certificate of Incorporation of the Surviving Corporation.
SECTION 1.4. Bylaws of the Surviving Corporation. At the Effective Time and
without any further action on the part of the Constituent Corporations, the
Bylaws of Broadcasting Licensee shall be the Bylaws of the Surviving
Corporation.
1
<PAGE> 8
SECTION 1.5. Board of Directors and Officers of the Surviving Corporation.
At the Effective Time, the Board of Directors of Broadcasting Licensee shall be
the Board of Directors of the Surviving Corporation.
SECTION 1.6. Effective Time of the Merger. The Constituent Corporations
will cause a copy of this Agreement and such other documents as are required by
the DGCL to be duly filed with the Secretary of State of the State of Delaware
on the date of the issuance of a final order from the Federal Communications
Commission approving the transactions contemplated by the Merger or as soon
thereafter as practicable. The Merger shall become effective upon the filing of
such certificate of merger and such other documents as are required to be filed
by the DGCL (the time of such filing being the "Effective Time").
ARTICLE II
CONVERSION OF SHARES
SECTION 2.1. Conversion of Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
capital stock of the Constituent Corporations:
(a) Broadcasting Licensee Capital Stock. The issued and outstanding
shares of common stock, par value $.01 per share, of Broadcasting Licensee, all
of which are held by Chancellor Broadcasting Company, shall remain outstanding
following the Merger.
(b) Cancellation of Sacramento Licensee Capital Stock. All shares of
common stock, par value $.01 per share, of Sacramento Licensee that are issued
and outstanding shall be cancelled and no consideration shall be delivered in
exchange therefor.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Amendment and Modification. This Agreement may be terminated,
amended, modified or supplemented by a written instrument signed by the parties
hereto and, as applicable, approved by action taken by their respective Boards
of Directors, at any time, but no amendment, modification or supplement shall be
made which by law requires further approval by the stockholders of the
Constituent Corporations without such further approval.
SECTION 3.2. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal, or unenforceable, the validity, legality, and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 3.3. Parties in Interest. This Agreement shall be binding upon and
inure only to the benefit of each party hereto, and, nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 3.4. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of Delaware applicable to
contracts made and to be performed wholly within
2
<PAGE> 9
such state, and the parties hereto submit to the jurisdiction of the courts of
the State of Delaware in any action or proceeding arising out of or relating to
this Agreement.
SECTION 3.5 Counterparts. This Agreement may be executed in one or
more separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
SECTION 3.6 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 3.7 Entire Agreement. This Agreement is intended by the
parties to be a final expression of their agreement and a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties, or undertakings in respect of the subject matter
contained herein, other than those set forth or referred to herein.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officers, all as of
the day and year first above written.
CHANCELLOR COMMUNICATIONS OF
SACRAMENTO LICENSEE, INC.
By: /s/ Steven Dinetz
------------------------
Name: Steven Dinetz
----------------------
Title: President & Secretary
---------------------
CHANCELLOR BROADCASTING LICENSEE
COMPANY
By: /s/ Steven Dinetz
------------------------
Name: Steven Dinetz
----------------------
Title: President & Secretary
---------------------
3
<PAGE> 10
CERTIFICATE OF THE SECRETARY
OF
CHANCELLOR COMMUNICATIONS OF SACRAMENTO LICENSEE, INC.
I, Steven Dinetz, the Secretary of Chancellor Communications of
Sacramento Licensee, Inc., hereby certify that the Agreement and Plan of Merger
to which this certificate is attached, after having been first duly signed on
behalf of the corporation by the President, was duly approved and adopted by
the Written Consent of The Sole Stockholder of Chancellor Communications of
Sacramento Licensee, Inc. dated as of August 31, 1995.
WITNESS my hand this 16th day of November, 1995.
/s/ STEVEN DINETZ
-----------------
Steven Dinetz,
Secretary
<PAGE> 11
CERTIFICATE OF THE SECRETARY
OF
CHANCELLOR BROADCASTING LICENSEE COMPANY
I, Steven Dinetz, the Secretary of Chancellor Broadcasting Licensee
Company, hereby certify that the Agreement and Plan of Merger to which this
certificate is attached, after having been first duly signed on behalf of the
corporation by the President, was duly approved and adopted by the Written
Consent of The Sole Stockholder of Chancellor Broadcasting Licensee Company
dated as of August 31, 1995.
WITNESS my hand this 16th day of November, 1995.
/s/ STEVEN DINETZ
-----------------
Steven Dinetz,
Secretary
<PAGE> 12
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "CHANCELLOR BROADCASTING LICENSEE COMPANY", CHANGING ITS NAME FROM
"CHANCELLOR BROADCASTING LICENSEE COMPANY" TO "CHANCELLOR MEDIA LICENSEE
COMPANY", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT
4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8712950
DATE: 10-21-97
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR BROADCASTING LICENSEE COMPANY
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Chancellor Broadcasting Licensee Company ("Corporation"), a Delaware
corporation hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the present Article FIRST and inserting in lieu thereof a
new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to
as the "Corporation") is:
"CHANCELLOR MEDIA LICENSEE COMPANY"
2. The Board of Directors and Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17th day of October, 1997.
CHANCELLOR BROADCASTING LICENSEE
COMPANY, a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 14
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR BROADCASTING LICENSEE COMPANY", FILED IN THIS
OFFICE ON THE THIRTEENTH DAY OF JUNE, A.D. 1994, AT 1:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ William T. Quillen
[SEAL] -----------------------------------------
William T. Quillen, Secretary of State
2409237 8100 AUTHENTICATION: 7147581
944106348 DATE: 06-13-94
<PAGE> 15
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR BROADCASTING LICENSEE COMPANY
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter called the "Corporation") under the General
Corporation Law of the State of Delaware, do hereby adopt the following
Certificate of Incorporation for the Corporation:
FIRST: The name of the Corporation is Chancellor Broadcasting licensee
Company.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any and all lawful acts and activity for which corporations may be organized
under the General Corporation Law of Delaware. The Corporation will have
perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares, par value $.01 per share, designated
Common Stock.
FIFTH: The name of the incorporator of the Corporation is R. Jay Tabor,
and the mailing address of such incorporator is 100 Crescent Court, Suite 1300,
Dallas, Texas 75201.
SIXTH: The number of directors constituting the initial board of directors
is one, and the name and mailing address of the person who is to serve as a
director until the first annual meeting of stockholders or until his successor
is elected and qualified is as follows:
Steven Dinetz 9030 Woodhurst Drive
Dallas, Texas 75243
<PAGE> 16
SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the by-laws of the Corporation otherwise provide.
EIGHTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the by-laws of the Corporation.
NINTH: No contract or transaction between the Corporation and one or more
of its directors, officers or stockholders or between the Corporation and any
person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her, or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved, or ratified by the board of directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
TENTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or
2
<PAGE> 17
she (i) is or was a director or officer of the Corporation or (ii) while a
director or officer of the Corporation, 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, to the fullest extent permitted under the
Delaware General Corporation Law, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article is in effect. Any
repeal or amendment of this Article Tenth shall be prospective only and shall
not limit the rights of any such director or officer or the obligations of the
Corporation with respect to any claim arising from or related to the services of
such director or officer in any of the foregoing capacities prior to any such
repeal or amendment to this Article Tenth. Such right shall include the right to
be paid by the Corporation expenses incurred in defending any such proceeding in
advance of its final disposition to the maximum extent permitted under the
Delaware General Corporation Law, as the same exists or may hereafter be
amended. If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the claimant shall also be entitled to be
paid the expenses of prosecuting such claim. It shall be a defense to any such
action that such indemnification or advancement of costs of defense are not
permitted under the Delaware General Corporation Law, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the Corporation (including its board of directors or any
committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
3
<PAGE> 18
permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, by-law,
resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
ELEVENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for 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 faith or which involve intentional misconduct or 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. Any repeal or amendment of this Article Eleventh by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation arising from an act or omission occurring prior to the time of such
repeal or amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions of
this Article Eleventh, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the Delaware General
Corporation Law.
TWELFTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of Delaware.
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<PAGE> 19
I, the undersigned, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file, and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated herein are true and, accordingly, I do hereunto set my hand on this
13th day of June, 1994.
/s/ R. Jay Tabor
--------------------------------------
R. Jay Tabor
5
<PAGE> 1
EXHIBIT 3.61
BY-LAWS
OF
CHANCELLOR BROADCASTING LICENSEE COMPANY
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE: OFFICES
<S> <C>
1.1 Registered Office and Agent . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 Required Vote; Withdrawal of Quorum . . . . . . . . . . . . . . . . . . . 3
2.8 Method of Voting; Proxies . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Conduct of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE THREE: DIRECTORS
3.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Number; Qualification; Election; Term . . . . . . . . . . . . . . . . . . 7
3.3 Change in Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Meetings of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 First Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Election of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.13 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.15 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FOUR: COMMITTEES
4.1 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Number; Qualification; Term . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
4.4 Committee Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.5 Alternate Members of Committees . . . . . . . . . . . . . . . . . . . . . 11
4.6 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.7 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.8 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.11 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE FIVE: NOTICE
5.1 Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office . . . . . . . . . . . . . . . . . . . . . 13
6.2 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.5 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.7 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.8 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.9 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.10 Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.11 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.12 Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Replacement of Lost or Destroyed Certificates . . . . . . . . . . . . . . 16
7.3 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4 Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.6 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.2 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.4 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
8.5 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.6 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.7 Securities of Other Corporations . . . . . . . . . . . . . . . . . . . . . 19
8.8 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.9 Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.10 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.11 Mortgages, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.13 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.14 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
iii
<PAGE> 5
BY-LAWS
OF
CHANCELLOR BROADCASTING LICENSEE COMPANY
A Delaware Corporation
PREAMBLE
These by-laws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Chancellor Broadcasting Licensee Company, a
Delaware corporation (the "Corporation"). In the event of a direct conflict
between the provisions of these by-laws and the mandatory provisions of the
Delaware General Corporation Law or the provisions of the certificate of
incorporation of the Corporation, such provisions of the Delaware General
Corporation Law or the certificate of incorporation of the Corporation, as the
case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State
of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President, the board of
directors, and shall be called by the President or the Secretary at the request
in writing of the stockholders of record of not less than
<PAGE> 6
ten percent of all shares entitled to vote at such meeting or as otherwise
provided by the certificate of incorporation of the Corporation. A special
meeting shall be held on such date and at such time as shall be designated by
the person(s) calling the meeting and stated in the notice of the meeting or in
a duly executed waiver of notice of such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice of
such meeting or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 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 officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, it
shall be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address.
Notice of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
2
<PAGE> 7
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each stockholder.
For a period of ten days prior to such meeting, such list shall be kept on file
at a place within the city where the meeting is to be held, which place shall
be specified in the notice of meeting or a duly executed waiver of notice of
such meeting or, if not so specified, at the place where the meeting is to be
held and shall be open to examination by any stockholder during ordinary
business hours. Such list shall be produced at such meeting and kept at the
meeting at all times during such meeting and may be inspected by any
stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders,
the stockholders entitled to vote thereat who are present, in person or by
proxy, or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other
than announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these by-laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly
3
<PAGE> 8
constituted meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each
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 three years from the
date of its execution, unless otherwise provided in the proxy. If no date is
stated in a proxy, such proxy shall be presumed to have been executed on the
date of the meeting at which it is to be voted. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and coupled with an
interest sufficient in law to support an irrevocable power or unless otherwise
made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, 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 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, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days prior to such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
4
<PAGE> 9
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law or these by-laws, 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
in the State of Delaware, principal place of business, or such officer or agent
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 law or these by-laws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the
absence or inability to act of any such officer, such officer's duties shall be
performed by
5
<PAGE> 10
the officer given the authority to act for such absent or non-acting officer
under these by-laws or by some person appointed by the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors.
Each inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of 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, count and tabulate all votes, ballots, or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by them.
No director or candidate for the office of director shall act as an inspector
of an election of directors. Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these by-laws, the
board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors
which shall constitute the entire board of directors shall be not less than
one. The first board of directors shall consist of the number of directors
named in the certificate of incorporation of the Corporation or, if no
directors are so named, shall consist of the number of directors elected by the
incorporator(s) at an
6
<PAGE> 11
organizational meeting or by unanimous written consent in lieu thereof.
Thereafter, within the limits above specified, the number of directors which
shall constitute the entire board of directors shall be determined by
resolution of the board of directors or by resolution of the stockholders at
the annual meeting thereof or at a special meeting thereof called for that
purpose. Except as otherwise required by law, the certificate of incorporation
of the Corporation, or these by-laws, the directors shall be elected at an
annual meeting of stockholders at which a quorum is present. 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. Each
director so chosen shall hold office until the first annual meeting of
stockholders held after his election and until his successor is elected and
qualified or, if earlier, until his death, resignation, or removal from office.
None of the directors need be a stockholder of the Corporation or a resident of
the State of Delaware. Each director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these by-laws, at any meeting of
stockholders called expressly for that purpose, any director 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 then entitled to vote on the election of
directors; provided, however, that so long as stockholders have the right to
cumulate votes in the election of directors pursuant to the certificate of
incorporation of the Corporation, if less than the entire board of directors is
to be removed, no one of the directors may be removed 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.
3.5 Vacancies. Vacancies and newly-created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by the
sole remaining director, and each director so chosen shall hold office until
the first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death,
7
<PAGE> 12
resignation, or removal from office. If there are no directors in office, an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly-created directorship, the directors
then in office shall constitute less than a majority of the whole board of
directors (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least 10% of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly-created directorships or to replace the
directors chosen by the directors then in office. Except as otherwise provided
in these by-laws, 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 the 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 in these by-laws with respect to the filling of other
vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time to time
by resolution of the board of directors. Notice of such regular meetings shall
not be required.
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3.10 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.11 Notice. The Secretary shall give notice of each special meeting
to each director at least 24 hours before the meeting. Notice of any such
meeting need not be given to any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these by-laws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to
time without further notice. Unless the act of a greater number is required by
law, the certificate of incorporation of the Corporation, or these by-laws, the
act of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these by-laws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
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3.14 Presumption of Assent. A director of the Corporation who is
present at the 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
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.15 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by
a majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of
one or more directors appointed by resolution adopted by a majority of the
entire board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the
earliest of (i) the expiration of his term as director, (ii) his resignation as
a committee member or as a director, or (iii) his removal as a committee member
or as a director.
4.3 Authority. Each committee, to the extent expressly provided in
the resolution establishing such committee, shall have and may exercise all of
the authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these by-laws.
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4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge
any committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting
of the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified,
the member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting of any committee need
be specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority
of the number of members designated by the board of directors shall constitute
a quorum for the transaction of business. If a quorum is not present at a
meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members
present at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these by-laws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the
request of the board of
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directors. The minutes of the proceedings of each committee shall be delivered
to the Secretary of the Corporation for placement in the minute books of the
Corporation.
4.10 Compensation. Committee members may, by resolution of the board
of directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these by-laws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice
required or permitted to be given by telegram, telex, or telefax shall be
deemed to be delivered and given at the time transmitted with all charges
prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these by-laws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such
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meeting, except where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner hereinafter provided. Any two
or more offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these by-laws or
as may be determined by resolution of the board of directors not inconsistent
with these by-laws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the
compensation of any officer and agent (other than the officer to whom such
power is delegated) to the Chairman of the Board or the President.
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6.6 Chairman of the Board. The Chairman of the Board, if elected by
the board of directors, shall have such powers and duties as may be prescribed
by the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President shall be the chief executive officer of
the Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the
Board or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, 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.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as
may be prescribed by the board of directors, the Chairman of the Board, or the
President.
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6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence
of such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer
during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these by-laws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which
shall at all reasonable times be open to inspection by any director upon
application at the office of the Corporation during business hours. He shall in
general perform all duties incident to the office of the Secretary, subject to
the control of the board of directors, the Chairman of the Board, and the
President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be
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a facsimile and may be sealed with the seal of the Corporation or a facsimile
thereof. If any officer, transfer agent, or registrar who has signed, or whose
facsimile signature has been placed upon, a certificate has ceased to be such
officer, transfer agent, or registrar before such certificate is issued, such
certificate 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. The
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.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares 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 with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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
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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.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state
securities laws or other applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and
payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain any
property of the Corporation, or for such other purpose as the board of
directors shall consider beneficial to the Corporation, and the board of
directors may modify or abolish any such reserve in the manner in which it was
created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
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8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. With the prior approval of a
majority of the Corporation's board of directors, the Chairman of the Board,
the President, or any Vice President of the Corporation shall have the 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.
8.7 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors, and members of a committee
of the board of directors may participate in and hold a meeting of such
stockholders, board of directors, or committee by means of a conference
telephone or similar communications equipment by means of which persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall constitute presence in person at 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.
8.8 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting
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of the stockholders, 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 (acting for themselves or
through a proxy) 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 the holders of all shares entitled to vote thereon were present and
voted and shall be 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. Every written consent of stockholders
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 days of the earliest dated consent delivered in
the manner required by this Section 8.9(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are 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, principal place
of business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
(b) Unless otherwise restricted by the certificate of incorporation of
the Corporation or by these by-laws, any action required or permitted to be
taken at a meeting of the board of directors, or of any committee of the board
of directors, may be taken without a meeting if a consent or consents in
writing, setting forth the action so taken, shall be signed by all the
directors or all the committee members, as the case may be, entitled to vote
with respect to the subject matter thereof, and such consent shall have the
same force and effect as a vote of such directors or committee members, as the
case may be, and may be stated as such in any certificate or document filed
with the Secretary of State of the State of Delaware or in any certificate
delivered to any person. Such consent or consents shall be filed with the
minutes of proceedings of the board or committee, as the case may be.
8.9 Invalid Provisions. If any part of these by-laws shall be held
invalid or inoperative for any reason, the
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remaining parts, so far as it is possible and reasonable, shall remain valid
and operative.
8.10 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.11 Headings. The headings used in these by-laws have been inserted
for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.12 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.13 Amendments. These by-laws may be altered, amended, or repealed or
new by-laws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new by-laws be contained in the
notice of such special meeting.
The undersigned, the Secretary of the Corporation, hereby certifies
that the foregoing by-laws were adopted, as amended, by unanimous consent by
the directors of the Corporation as of October 12, 1994.
/s/ STEVEN DINETZ
--------------------------------
Steven Dinetz, Secretary
<PAGE> 1
EXHIBIT 3.62
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"TREFOIL COMMUNICATIONS, INC.", FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF
FEBRUARY, A.D. 1994, AT 2 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386053
DATE: 11-04-98
<PAGE> 2
RESTATED
CERTIFICATE OF INCORPORATION
OF
TREFOIL COMMUNICATIONS, INC.
Trefoil Communications, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Trefoil Communications, Inc. Trefoil
Communications, Inc. was originally incorporated under the name Shamrock
Holdings, Inc. and the original Certificate of Incorporation of the corporation
was filed with the Secretary of State of the State of Delaware on April 12,
1978.
2. This Restated Certificate of Incorporation was duly adopted pursuant
to Section 245 of the General Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation only restates and
integrates the provisions of the Certificate of Incorporation of this
corporation and does not further amend the provisions of the corporation's
Certificate of Incorporation as theretofore amended or supplemented. There is no
discrepancy between the provisions of the corporation's Certificate of
Incorporation and those of the Restated Certificate of Incorporation.
4. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
FIRST: The name of the corporation is Trefoil Communications, Inc.
SECOND: The registered office of the corporation in the State of
Delaware is located at Corporate Trust Center, 1209 Orange Street, in the City
of Wilmington (19801), County of New Castle. 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 the State of Delaware.
FOURTH: This Corporation is authorized to issue two classes of shares
designated, respectively, "Common Stock" and "Preferred Stock." The number of
shares of Common Stock authorized to be issued is 50,000 and the number of
shares of Preferred Stock authorized to be issued is 100,000, all of which shall
have a par value of $.10 per share. Subject to Section 6 of this Article
FOURTH, the Preferred Stock shall be divided initially into (a) 70,000 shares of
Series A Cumulative Convertible Preferred Stock (the "Series A Preferred Stock")
with the voting rights, preferences and relative, participating, optional and
other special rights of the shares of such series, and the restrictions thereof,
set forth below in
<PAGE> 3
Article FOURTH Part A, and (b) 30,000 shares of Preferred Stock with the rights,
preferences, privileges and restrictions thereof, as set forth in Article FOURTH
Part B.
A. SERIES A PREFERRED STOCK
Section 1. Initial Purchase Price.
The Series A Preferred Stock shall have an initial purchase price of
$1000 per share (the "Initial Purchase Price"). The Series A Preferred Stock
shall rank prior to the Common Stock with respect to dividend rights and rights
on liquidation, dissolution or winding up.
Section 2. Dividends and Distributions.
a. The holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors or a
duly authorized committee thereof (the "Board of Directors"), out of the assets
of the Corporation legally available therefor, cumulative cash dividends at an
annual rate of 7.50% from and after the Issue Date (as defined in Section 11
hereof) as long as the shares of Series A Preferred Stock remain outstanding.
Dividends shall be computed on the basis of the Initial Purchase Price, and
shall accrue and be payable quarterly, in arrears, on the last Business Day as
defined in Section 11 hereof of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the Issue
Date. If dividends payable on the Series A Preferred Stock shall be in arrears
and not paid on the Quarterly Dividend Payment Date, whether or not by reason of
the absence of legally available funds therefor, the holders of the Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, additional dividends on accumulations of accrued but unpaid
dividends compounded quarterly at a rate of 8.625% per annum, from such
Quarterly Dividend Payment Date through the date of payment of such arrearages.
b. Dividends payable pursuant to paragraph (a) of this Section 2
shall begin to accrue and be cumulative from the Issue Date, whether or not
earned or declared. The amount of dividends so payable shall be determined on
the basis of twelve 30-day months and a 360-day year. Dividends paid on the
shares of Series A Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend on any
Quarterly Dividend Payment Date shall be fifteen days prior to such Quarterly
Dividend Payment Date unless the Board of Directors determines otherwise, in
which case the Board of Directors may fix another record date, which record date
shall be no more than sixty days prior to the date fixed for the payment
thereof. Dividends in arrears may be declared by the Board of Directors and paid
on any date fixed by the Board of Directors, whether or not a Quarterly Dividend
Payment Date, to the holders of record of the shares of Series A Preferred
Stock, as they appear on the stock register of the
2
<PAGE> 4
Corporation on such record date, which shall be no more than sixty days prior to
the payment date therefor, as shall be fixed by the Board of Directors.
c. In the event that the Corporation shall have failed to redeem
shares of Series A Preferred Stock pursuant to Section 5(b) hereof, whether or
not by reason of the absence of legally available funds, the dividend rate on
all outstanding shares of Series A Preferred Stock which were to have been
redeemed shall be 9.375% per annum (compounded quarterly, with respect to
dividends in arrears on and after the date of failure to redeem through the date
of redemption, at a rate of 10.78% per annum) from the date of failure to redeem
through the date of redemption.
d. The holders of shares of Series A Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
Section 3. Voting Rights. In addition to any voting rights provided by
law, the holders of shares of Series A Preferred Stock shall have the following
voting rights:
a. Except as otherwise provided in paragraph (c) of this Section
3, and in addition to voting rights provided elsewhere in this Section 3, and as
long as any of the Series A Preferred Stock is outstanding, each share of Series
A Preferred Stock shall entitle the holder thereof to vote on all matters voted
on by holders of Common Stock voting together as a single class with other
shares entitled to vote at all meetings of the shareholders of the Corporation.
With respect to any such vote, each share of Series A Preferred Stock shall
entitle the holder thereof to cast the number of votes equal to the number of
votes which could be cast in such vote by a holder of the shares of capital
stock of the Corporation into which such share of Series A Preferred Stock is
convertible on the record date for such vote; provided, however, that if more
than one share of Series A Preferred Stock shall be held by any holder of shares
of Series A Preferred Stock, the total number of votes which such holder shall
be entitled to cast pursuant to this Section 3(a) shall be computed on the basis
of conversion of the total number of shares of Series A Preferred Stock held by
such holder, with any then remaining fractional share disregarded for the
purposes of this Section 3(a).
b. In addition to the voting rights provided elsewhere in this
Section 3:
The affirmative vote of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a single
series, shall be necessary to (A) authorize an increase in the authorized number
of shares of, or issue (including on conversion or exchange of any convertible
or exchangeable securities or by reclassification), any shares of any class or
classes, or any series of any class or classes, of the Corporation's capital
stock ranking pari passu with or prior to (either as to dividends or upon
voluntary or involuntary liquidation, dissolution or winding up) the Series A
Preferred Stock; (B) increase the authorized number of shares of, or issue
(including on conversion or exchange of any convertible or exchangeable
securities or by reclassification) any shares of, Series A Preferred Stock; (C)
authorize, adopt or approve any alteration, amendment or repeal of any provision
of the Certificate of Incorporation of the Corporation including any such
3
<PAGE> 5
alteration, amendment or repeal effected by any merger or other business
combination in which the Corporation is the surviving or resulting corporation;
(D) sell, assign, lease, convey or otherwise dispose of all or substantially all
of the assets of the Corporation in one transaction or a series of related
transactions; (E) except for the Merger of Malrite Communications Group, Inc.
into the Corporation (the "Merger"), engage in or consummate any reorganization,
consolidation, recapitalization, liquidation, dissolution or winding up of the
Corporation or any merger of the Corporation with or into any other corporation;
or (F) take any other corporate action, which adversely affects the powers,
preferences or rights of the Series A Preferred Stock.
c. As long as shares of Series A Preferred Stock having an
aggregate Initial Purchase Price of at least $25,000,000 are issued and
outstanding, and subject to the provisions of Section 3(f) hereof, the
authorized number of directors of the Corporation shall be seven, of which the
holders of the outstanding shares of Series A Preferred Stock, voting separately
as a single series, shall be entitled to elect three directors, and the holders
of the outstanding shares of Common Stock voting separately as a class shall be
entitled to elect the remaining four directors, subject to any rights in the
terms of any series of Preferred Stock created pursuant to Article FOURTH Part B
to increase the size of the Board of Directors and to elect up to a specified
number of additional directors.
d. (1) The rights of holders of shares of Series A Preferred Stock
to take any actions as provided in this Section 3 may be exercised, subject to
the DGCL (as defined in Section 11 hereof), at any annual meeting of
shareholders or at a special meeting of shareholders held for such purpose as
hereinafter provided or at any adjournment or postponement thereof, or by the
written consent, delivered to the Secretary of the Corporation, of the holders
of the minimum number of shares required to take such action.
As long as such right to vote continues (and unless such
right has been exercised by written consent of the minimum number of shares
required to take such action), the Chairman of the Board of the Corporation may
call, and upon the written request of holders of record of 20% of the
outstanding shares of Series A Preferred Stock, addressed to the Secretary of
the Corporation at the principal office of the Corporation, shall call, a
special meeting of the holders of shares entitled to vote as provided herein.
The Corporation shall use its best efforts to hold such meeting within
thirty-five, but in any event not later than sixty, days after delivery of such
request to the Secretary of the Corporation, at the place and upon the notice
provided by law and in the By-laws of the Corporation for the holding of
meetings of shareholders.
(2) At each meeting of shareholders at which the holders of
shares of Series A Preferred Stock shall have the right, voting separately as a
single series, to elect directors of the Corporation as provided in this Section
3 or to take any action, the presence in person or by proxy of the holders of
record of a majority of the total number of shares of Series A Preferred Stock
then outstanding and entitled to vote on the matter shall be necessary and
sufficient to constitute a quorum. At any such meeting or at any adjournment or
postponement thereof:
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<PAGE> 6
(A) the absence of a quorum of the holders of shares of
Series A Preferred Stock shall not prevent the election of directors other than
those to be elected by the holders of shares of Series A Preferred Stock and the
absence of a quorum of the holders of shares of any other class or series of
capital stock shall not prevent the election of directors to be elected by the
holders of shares of Series A Preferred Stock or the taking of any action by the
holders of Series A Preferred Stock as provided in this Section 3; and
(B) in the absence of a quorum of the holders of shares of
Series A Preferred Stock, holders of a majority of such shares present in person
or by proxy shall have the power to adjourn the meeting as to the actions to be
taken by the holders of shares of Series A Preferred Stock from time to time and
place to place without notice other than announcement at the meeting until a
quorum shall be present.
For the taking of any action as provided in paragraphs
(b), (c) and (e) of this Section 3 by the holders of shares of Series A
Preferred Stock each such holder shall have one vote for each share of Series A
Preferred Stock standing in his name on the transfer books of the Corporation as
of any record date fixed for such purpose or, if no such date be fixed, 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.
Each director elected by the holders of shares of Series A
Preferred Stock pursuant to paragraph (c) of this Section 3 shall, unless his
term shall expire earlier, hold office until the annual meeting of shareholders
next succeeding his election or until his successor, if any, is elected and
qualified.
In case any vacancy shall occur among the directors
elected by the holders of shares of Series A Preferred Stock pursuant to
paragraph (c) of this Section 3, such vacancy may be filled for the unexpired
portion of the term, to the extent permitted by the DGCL, by the Board, provided
such Board action must include the affirmative vote of a majority of the
remaining directors theretofore elected by such holders (if there is a remaining
director) (or such directors' successors in office) in favor of the election of
the person filling such vacancy. If any such vacancy is not so filled within
twenty days after the creation thereof or if all of the directors so elected by
the holders of Series A Preferred Stock shall cease to serve as directors before
their terms shall expire, the holders of the Series A Preferred Stock then
outstanding and entitled to vote for such directors may, by written consent as
herein provided, or at a special meeting of such holders called as provided
herein, elect successors to hold office for the unexpired terms of the directors
whose places shall be vacant.
In case any vacancy shall occur among the directors
elected by the holders of Common Stock pursuant to paragraph (e) of this Section
3, such vacancy may be filled for the unexpired portion of the term, to the
extent permitted by the DGCL, by the Board, provided such Board action must
include the affirmative vote of a majority of the remaining directors
theretofore elected by such holders (if there is a remaining director) (or
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<PAGE> 7
such directors' successors in office) in favor of the election of the person
filling such vacancy. If any such vacancy is not so filled within twenty days
after the creation thereof or if all of the directors so elected by the holders
of Common Stock shall cease to serve as directors before their terms shall
expire, the holders of the Common Stock then outstanding and entitled to vote
for such directors may, by written consent in accordance with DGCL or at a
special meeting of such holders called as provided in DGCL and the Bylaws of the
Corporation, elect successors to hold office for the unexpired terms of the
directors whose places shall be vacant.
To the extent permitted by the DGCL, any Series A
Director may be removed from office with or without cause by the vote or written
consent of the holders of at least a majority of the outstanding shares of
Series A Preferred Stock, voting separately as a single series. A special
meeting of the holders of shares of Series A Preferred Stock may be called in
accordance with the procedures set forth in subparagraph (d)(1) of this Section
3.
e. In addition to the voting rights provided elsewhere in this
Section 3 and in addition to any board approval or any shareholder approval
requirements set forth in the Certificate of Incorporation or Bylaws, as
amended, of the Corporation or as otherwise required by law, and as long as
shares of Series A Preferred Stock having an aggregate Initial Purchase Price of
at least $25,000,000 are issued and outstanding, and subject to the provisions
of Section 3(f) hereof, the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock, in person or by
proxy, at an annual meeting of shareholders or at a special meeting of
shareholders held for such purpose as provided above in Section 3(d), or the
written consent, delivered to the Secretary of the Corporation, of the holders
of at least a majority of the outstanding shares of Series A Preferred Stock,
shall be necessary to approve the following:
(1) engaging in any business other than the radio broadcasting
business,
(2) any purchase, redemption or other acquisition by the
Corporation or any of its Subsidiaries of any shares of capital stock of the
Corporation or any of its Subsidiaries (other than wholly-owned Subsidiaries of
the Corporation), except (w) as required pursuant to any employment agreement,
stock option plan or restricted stock plan for employees of the Corporation or
its Subsidiaries approved in accordance herewith, (x) with respect to any
redemption or conversion of shares of Series A Preferred Stock pursuant to
Sections 5 or 8 hereof, (y) pursuant to the terms of the Merger Consideration
Agreement, dated as of the Issue Date (the "Merger Consideration Agreement"),
between the Corporation and Milton Maltz ("Maltz"), or the Stockholder
Agreement, dated the Issue Date, between Maltz, Trefoil, the then holders of
Common Stock of the Corporation, and the Corporation (the "Stockholders
Agreement") and (z) pursuant to the terms of the Notes or any Approved Security;
it being understood that the payment by the Corporation of cash in lieu of
fractional shares upon exercise of the Warrants in accordance with their terms
shall not be deemed to be an acquisition of capital stock for any purpose of
this Certificate.
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<PAGE> 8
(3) except as expressly permitted by paragraph (4) below,
any material alteration, amendment or modification of the Credit Agreement, or
any material alteration, amendment or modification of, a Replacement Facility,
if such alteration, amendment or modification is to increase the interest rate,
lengthen the term, increase the maximum commitment or make any other changes
that materially and adversely affect the holders of Preferred Stock,
(4) any incurrence of indebtedness for borrowed money by
the Corporation or any of its Subsidiaries, except (A) pursuant to the Credit
Agreement, dated as of the Issue Date, by and among the Corporation and/or any
of its Subsidiaries, and the Lenders listed therein, and The Bank of New York,
as Agent and related loan documents (including guaranties) (collectively, the
"Credit Agreement") or any credit agreements evidencing any amendment,
extension, renewal, refunding or refinancing thereof and related guaranties
(collectively, a "Replacement Facility") in an amount not in excess of the
maximum amount of the Credit Agreement; (B) to permit the Corporation to fulfill
its mandatory redemption obligations pursuant to Section 5(b) hereof and
pursuant to the Notes (as defined in Section 11 hereof) on any specified
redemption date, provided that the indebtedness referred to in this clause (B)
is limited to the amount necessary for, and used by the Corporation solely for
the purpose of fulfilling such mandatory redemption obligation on such date, and
is incurred not more than thirty days prior to such date; (C) indebtedness owed
to the Corporation or a wholly-owned subsidiary of the Corporation; (D)
obligations of Malrite assumed in the Merger; (E) Interest Rate Protection
Arrangements with the Lenders under the Credit Agreement and (F) other
indebtedness for borrowed money, not described in (A), (B), (C), (D) or (E)
above and not in excess of $25,000,000 principal amount outstanding in aggregate
at any one time,
(5) other than by virtue of the Merger, any assumption or
guaranty by the Corporation or any of its Subsidiaries of the indebtedness of
any Person (other than the Company and its Subsidiaries) not approved pursuant
to this Section 3(e), in an aggregate principal amount at any one time
outstanding in excess of $1,000,000 for all such Persons (other than the
Company and its Subsidiaries),
(6) any payment to or other transaction with any Affiliate
of the Corporation or any of its Subsidiaries other than (A) in an amount not in
excess of $500,000 in the aggregate for all such payments or transactions in any
twelve month period following the Issue Date or (B) pursuant to the terms of any
agreement entered into on or prior to the Issue Date or any security issued on
or prior to the Issue Date,
(7) any declaration of or payment of any cash dividend or
other property distribution (other than a dividend payable in shares of Common
Stock) with respect to any shares of stock of the Corporation ranking junior to
the Series A Preferred Stock as to the payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up,
7
<PAGE> 9
(8) other than by virtue of the Merger, the entry into,
adoption, amendment or termination by the Corporation or any of its Subsidiaries
of any bonus, profitsharing, pension or other employee benefit or special
compensation plans or programs (other than (i) such amendments thereto as
required by law, to the minimum extent so required by law, (ii) any broad-based
plans not limited to executive officers or senior management and (iii) plans not
involving more than $100,000 individually) by the Corporation or any of its
Subsidiaries,
(9) any issuance of any equity securities of the
Corporation or any of its Subsidiaries (including, without limitation, any
securities convertible into, or options with respect to, or warrants to purchase
or rights to subscribe to, any such equity securities) other than an issuance of
equity securities to the Corporation or a wholly-owned Subsidiary of the
Corporation or pursuant to (A) any employment agreement, stock option plan or
restricted stock plan for employees of the Corporation or its Subsidiaries
approved by the Board of Directors that, when aggregated with all other such
plans subject to this exception does not involve the issuance of more than
10% of the outstanding stock of the Corporation at the time of adoption, (B) the
Warrants, (C) the Notes, (D) the terms of the Series A Preferred Stock or of any
Approved Security, or (E) the Merger,
(10) other than with respect to the disposition of radio
stations KUDL-FM and WHB-AM or otherwise specifically permitted under paragraphs
(3), (4) or (5) of this Section 3(e), any entry into, early termination of, or
material amendment to or modification of, any material contract or agreement
(other than (i) agreements entered into on the Issue Date, (ii) agreements or
series of related agreements, providing for payments by or to the Corporation or
its Subsidiaries not in excess of $2,000,000 individually or (iii) agreements
with music licensing entities (such as ASCAP, BMI and SESAC), agreements for the
provision of market research services and agreements with rating agencies) to
which the Corporation or any of its Subsidiaries is a party, (it being
understood that the Merger shall not be deemed to be the entering into by the
Company of the agreements of Malrite for purposes of this paragraph 10),
(11) any alteration, amendment or repeal of any provisions
of the Bylaws,
(12) other than (i) the disposition of radio stations
KUDL-FM and WHB-AM, (ii) the Merger or (iii) transfers to the Corporation or any
wholly-owned Subsidiary of the Corporation, any acquisition or disposition of
any license to operate an AM or FM radio broadcast station, or all or
substantially all of the assets of such a station.
f. Notwithstanding the foregoing, (i) holders of shares of Series
A Preferred Stock shall not be entitled to exercise the rights granted to them
pursuant to paragraph (c) of this Section 3, and (ii) the requirement to obtain
the affirmative vote or consent of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock as set forth in paragraph (e) of
this Section 3 shall terminate, if less than a majority of the then outstanding
shares of Series A Preferred Stock are owned, beneficially or of record,
8
<PAGE> 10
by Trefoil (or any successor thereto which Trefoil has advised the Corporation
in writing is a successor controlled at that time, directly or indirectly, by
the persons who were officers or directors of SCA on the Issue Date).
Section 4. Certain Restrictions.
a. The Corporation may not declare or pay any dividend or make any
distribution of assets (other than dividends paid or other distributions made in
stock of the Corporation ranking junior to the Series A Preferred Stock as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) on, or redeem, purchase or otherwise acquire (except
upon conversion or exchange for stock of the Corporation ranking junior to the
Series A Preferred Stock as to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up or except (x) pursuant to the
terms of the Merger Consideration Agreement and (y) pursuant to the terms of the
Notes or any Approved Security), shares of Common Stock or of any other stock of
the Corporation ranking junior to the Series A Preferred Stock as to the payment
of dividends or the distribution of assets upon liquidation, dissolution or
winding up, unless all accrued and unpaid dividends on the Series A Preferred
Stock for all prior full quarterly dividend periods have been or
contemporaneously are declared and paid.
b. Whenever all accrued dividends on the Series A Preferred
Stock are not paid in full through the most recent Quarterly Dividend Payment
Date, the Corporation may not declare or pay dividends or make any distribution
of assets (other than dividends paid or other distributions made in stock of the
Corporation ranking junior to the Series A Preferred Stock as to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up) on any other stock of the Corporation ranking on a parity with the
Series A Preferred Stock as to the payment of dividends unless (i) all accrued
and unpaid dividends on the Series A Preferred Stock for all prior dividend
periods are contemporaneously declared and paid or (ii) all dividends declared
and paid or set apart for payment or other distributions made on the Series A
Preferred Stock and any other stock of the Corporation ranking on a parity with
the Series A Preferred Stock as to the payment of dividends are declared and
paid or set apart for payment or made pro rata so that the amount of dividends
declared and paid or set apart for payment or other distributions made per share
on the Series A Preferred Stock and such other stock of the Corporation will
bear the same ratio that accrued and unpaid dividends per share on the Series A
Preferred Stock and such other stock of the Corporation bear to each other.
Whenever all accrued dividends on the Series A Preferred Stock
are not paid in full through the most recent Quarterly Dividend Payment Date,
the Corporation may not redeem, purchase or otherwise acquire (except upon
conversion or exchange for stock of the Corporation ranking junior to the Series
A Preferred Stock as to the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up) other stock of the Corporation
ranking on a parity with the Series A Preferred Stock as to the payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up unless (i) all outstanding shares of the Series A Preferred Stock are
contemporaneously redeemed or (ii) a
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<PAGE> 11
pro rata redemption is made of shares of Series A Preferred Stock and such other
stock of the Corporation, with the amount allocable to each series of such stock
determined on the basis of the aggregate liquidation preference of the
outstanding shares of each series and the shares of each series being redeemed
only on a pro rata basis.
c. The Corporation shall not permit any Subsidiary (as defined in
Section 11 hereof) of the Corporation to purchase or otherwise acquire for
consideration any shares of capital stock of the Corporation unless the
Corporation could, pursuant to paragraphs (a) or (b) of this Section 4, purchase
such shares at such time and in such manner.
Section 5. Redemption.
a. The Corporation shall not have any right to redeem any shares
of Series A Preferred Stock prior to the third anniversary of the Issue Date. On
and after such date, the Corporation shall have the right, at its sole option
and election made in accordance with paragraphs (d) and (e) of this Section 5,
to redeem, out of funds legally available therefor, shares of Series A Preferred
Stock, in whole or in part, in integral multiples having an aggregate Initial
Purchase Price of at least $7,000,000 (unless a lesser number is then
outstanding), at any time and from time to time, at a redemption price equal to
the Initial Purchase Price, plus an amount per share equal to all accrued and
unpaid dividends payable in cash, whether or not declared, to the date of
redemption (the "Redemption Price"); provided, however, that the Corporation
shall not have any such right unless (A) all quarterly dividends then payable on
shares of Series A Preferred Stock pursuant to Section 2 hereof shall have been
paid in full, (B) there has been consummated an underwritten public offering of
the Common Stock registered under the Securities Act of 1933, as amended, and
the Common Stock is traded on a national securities exchange or the NASDAQ
System, (C) the Current Market Price of the Common Stock is equal to at least
165% of the Conversion Price (as defined in Section 11 hereof) for at least
twenty out of thirty consecutive Trading Days (as defined in Section 8(a)
hereof), (D) at all times from the commencement of such thirty Trading Day
period to the date fixed for redemption, the conversion by the holders of all
shares of Series A Preferred Stock being redeemed would not cause the
Corporation to be in violation of the Federal Communications Act of 1934, as
amended (the "Communications Act") and the rules and policies of the Federal
Communications Commission thereunder, or any similar or successor laws, rules,
regulations or policies, and (E) the Corporation shall have furnished the
holders of the Series A Preferred Stock an officer's certificate confirming the
satisfaction of clause (D) above.
b. On each anniversary of the Issue Date (or, if such date is not
a Business Day, then on the next succeeding Business Day) occurring in the years
set forth below, (as long as any shares of Series A Preferred Stock remain
outstanding), the Corporation shall redeem, out of funds legally available
therefor, the number of shares set forth below (or, if fewer than said number
of shares of Series A Preferred Stock are then outstanding, the number of shares
then outstanding) by paying therefor in cash the Redemption Price.
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<PAGE> 12
<TABLE>
<CAPTION>
Anniversary of Issue Number of Shares
Date occurring in to be Redeemed
- -------------------- ----------------
<S> <C>
2003 14,000
2004 28,000
2005 Any and all then outstanding
shares of Series A Preferred Stock
</TABLE>
The number of shares of Series A Preferred Stock to be redeemed by
the Corporation on any date fixed for redemption pursuant to its mandatory
redemption obligation as set forth in this paragraph (b) of Section 5 shall be
reduced by the number of shares, if any, of Series A Preferred Stock redeemed by
the Corporation, at its sole option and election, pursuant to Section 5(a)
hereof or repurchased by the Corporation, prior to such date fixed for
redemption, and the number of shares, if any, of Series A Preferred Stock
converted by the holders thereof prior to such date fixed for redemption, in
each case to the extent such number of shares has not previously been credited
against any mandatory redemption obligation of the Corporation pursuant to this
Section 5(b).
c. If less than all shares of Series A Preferred Stock at the time
outstanding are to be redeemed, the shares to be redeemed shall be selected pro
rata.
d. Notice of any redemption of shares of Series A Preferred Stock
pursuant to paragraph (a) or (b) of this Section 5 shall be mailed at least
twenty, but not more than seventy-five, days prior to the date fixed for
redemption to each holder of shares of Series A Preferred Stock to be redeemed,
at such holder's address as it appears on the transfer books of the Corporation.
In order to facilitate the redemption of shares of Series A Preferred Stock, the
Board of Directors may fix a record date for the determination of Series A
Preferred Stock to be redeemed not more than seventy-five days or less than
twenty days prior to the date fixed for such redemption.
e. On the date of any redemption being made pursuant to paragraph
(a) or (b) of this Section 5 which is specified in a notice given pursuant to
paragraph (d) of this Section 5, the Corporation shall, and at any time after
such notice shall have been mailed and before the date of redemption the
Corporation may, deposit for the benefit of the holders of shares of Series A
Preferred Stock to be redeemed the funds necessary for such redemption,
including the amount necessary to pay all accrued and unpaid dividends to the
date of redemption, with a bank or trust company in the City of Los Angeles,
California or the City of New York, New York having a capital and surplus of at
least $1,000,000,000. Any moneys so deposited by the Corporation and unclaimed
at the end of one year from the date designated for such redemption shall revert
to the general funds of the Corporation. After such reversion, any such bank or
trust company shall, upon demand, pay over to the Corporation such unclaimed
amounts and thereupon such bank or trust company shall be relieved of all
responsibility in respect thereof and any holder of shares of Series A Preferred
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<PAGE> 13
Stock to be redeemed shall look only to the Corporation for the payment of the
Redemption Price. In the event that moneys are deposited pursuant to this
paragraph (e) in respect of shares of Series A Preferred Stock that are
converted in accordance with the provisions of Section 8, such moneys shall,
upon such conversion, revert to the general funds of the Corporation and, upon
demand, such bank or trust company shall pay over to the Corporation such moneys
and shall be relieved of all responsibility to the holders of such converted
shares in respect thereof. Any interest accrued on funds deposited pursuant to
this paragraph (e) shall be paid from time to time to the Corporation for its
own account.
f. Notice of redemption having been given as aforesaid, upon the
deposit of funds pursuant to paragraph (e) in respect of shares of Series A
Preferred Stock to be redeemed pursuant to paragraph (a) or (b) of this Section
5, notwithstanding that any certificates for such shares shall not have been
surrendered for cancellation, from and after the date of redemption designated
in the notice of redemption the shares represented thereby shall no longer be
deemed outstanding, and all rights of the holders of Series A Preferred Stock
shall cease, including (i) the rights to receive dividends thereon shall cease
to accrue, and (ii) all rights of the holders of shares of Series A Preferred
Stock to be redeemed shall cease and terminate, excepting only the right to
receive the Redemption Price therefor, and the right to convert such shares into
shares of Common Stock until the close of business on the Business Day prior to
the date of redemption, in accordance with Section 8 hereof.
Section 6. Reacquired Shares. Any shares of Series A Preferred Stock
converted, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall not be reissued and shall be retired and cancelled
promptly after the acquisition thereof. All such shares of Series A Preferred
Stock shall upon their cancellation, in accordance with the DGCL, become
authorized but unissued shares of Preferred Stock of the Corporation and may be
reissued as part of another series of Preferred Stock of the Corporation,
subject to the conditions or restrictions on issuance set forth herein.
Section 7. Liquidation, Dissolution or Winding Up.
a. Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series A Preferred Stock shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to its stockholders (after
any payment or distribution on any stock of the Corporation ranking senior to
the Series A Preferred Stock as to the distribution of assets upon liquidation,
dissolution or winding up and before any payment or distribution on the Common
Stock or any other stock of the Corporation ranking junior to the Series A
Preferred Stock as to the distribution of assets upon liquidation, dissolution
or winding up) a liquidation distribution in the amount of the Liquidation
Preference (as defined in Section 11 hereof).
In the event the assets of the Corporation available for
distribution to the holders of the shares of Series A Preferred Stock upon any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled as provided above, no such distribution shall be
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made on account of any other stock of the Corporation ranking on a parity with
the Series A Preferred Stock as to the distribution of assets upon such
liquidation, dissolution or winding up unless a pro rata distribution is made on
the Series A Preferred Stock and such other stock of the Corporation, with the
amount allocable to each series of such stock determined on the basis of the
aggregate liquidation preference of the outstanding shares of each series and
distributions to the shares of each series being made on a pro rata basis.
b. Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation shall constitute a liquidation,
dissolution or winding up, voluntary or involuntary, for the purposes of this
Section 7. After the payment to the holders of the shares of Series A Preferred
Stock of the Liquidation Preference, the holders of the shares of Preferred
Stock as such shall have no right or claim to any of the remaining assets of the
Corporation.
Section 8. Conversion
a. Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall be convertible at the option of the
holder thereof into fully paid and nonassessable shares of Common Stock. The
number of shares of Common Stock deliverable upon conversion of a share of
Series A Preferred Stock, adjusted as hereinafter provided, is referred to
herein as the "Conversion Ratio." The Conversion Ratio shall initially be
0.1219345 and the Conversion Price (defined as the Initial Purchase Price
divided by the Conversion Ratio) shall initially be $8201.12. The Conversion
Ratio and the Conversion Price are subject to adjustment from time to time
pursuant to paragraph (g) of this Section 8.
b. Conversion of the Series A Preferred Stock may be effected by
any holder thereof upon the surrender to the Corporation at the principal office
of the Corporation in the State of California or at the office of any agent or
agents of the Corporation, as may be designated by the Board of Directors (the
"Transfer Agent," which may be the Corporation), of the certificate for such
Series A Preferred Stock to be converted accompanied by a written notice stating
that such holder elects to convert all or a specified whole number of such
shares in accordance with the provisions of this Section 8 and specifying the
name or names in which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. In case such notice shall specify a name or
names other than that of such holder, such notice shall be accompanied by
payment of all transfer taxes payable upon the issuance of shares of Common
Stock in such name or names. Other than such taxes, the Corporation will pay any
and all issue and other taxes (other than taxes based on income) that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of Series A Preferred Stock pursuant hereto. As promptly as
practicable, after the surrender of such certificate or certificates and the
receipt of such notice relating thereto and, if applicable, payment of all
transfer taxes (or the demonstration to the satisfaction of the Corporation that
such taxes have been paid), the Corporation shall deliver or cause to be
delivered (i) certificates representing the number of validly issued, fully paid
and nonassessable full shares of Common Stock to which the holder of shares of
Series A Preferred Stock being converted shall be entitled and
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(ii) if less than the full number of shares of Series A Preferred Stock
evidenced by the surrendered certificate or certificates is being converted, a
new certificate or certificates, of like tenor, for the number of shares
evidenced by such surrendered certificate or certificates less the number of
shares being converted. Such conversion shall be deemed to have been made at the
close of business on the date of giving such notice and of such surrender of the
certificate or certificates representing the shares of Series A Preferred Stock
to be converted so that the rights of the holder thereof as to the shares being
converted shall cease except for the right to receive shares of Common Stock in
accordance herewith, and the person entitled to receive the shares of Common
Stock shall be treated for all purposes as having become the record holder of
such shares of Common Stock at such time. The Corporation shall not be required
to convert, and no surrender of shares of Series A Preferred Stock shall be
effective for that purpose, while the transfer books of the Corporation for the
Common Stock are closed for any purpose (but not for any period in excess of
five days); but the surrender of shares of Series A Preferred Stock for
conversion during any period while such books are so closed shall become
effective for conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such shares of Series A Preferred Stock
were surrendered, and at the Conversion Ratio in effect on the date of such
surrender.
c. In case any shares of Series A Preferred Stock are to be
redeemed pursuant to Section 5, such right of conversion shall cease and
terminate as to the shares of Series A Preferred Stock to be redeemed at the
close of business on the date fixed for redemption unless the Corporation shall
default in the payment of the Redemption Price.
d. The Conversion Ratio shall be subject to adjustment from time
to time in certain instances as hereinafter provided. Upon conversion, the
holder of shares of Series A Preferred Stock shall be entitled to receive an
amount equal to any accrued and unpaid dividends on the shares of Series A
Preferred Stock surrendered for conversion to the date of such conversion. Such
amount shall be payable by the Corporation in cash (to the extent funds are
legally available therefor and may be paid in compliance with the Credit
Agreement); provided, however, that if funds are not legally available for the
payment by the Corporation of any such amount accrued and unpaid dividends in
cash or such payment cannot be made in compliance with the Credit Agreement, the
holder of the shares of Series A Preferred Stock surrendered for conversion
shall receive payment in cash with respect to such amount promptly at such time
as the funds therefor are legally available and may be paid without breaching
the Credit Agreement.
e. In connection with the conversion of any shares of Series A
Preferred Stock, no fractions of shares of Common Stock shall be issued, but in
lieu thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Current Market Price per share of Common Stock on the Trading Day on which
such shares of Series A Preferred Stock are deemed to have been converted. If
more than one share of Series A Preferred Stock shall be surrendered for
conversion by the same holder at the same time, the number of full shares of
Common Stock issuable on conversion thereof shall be computed on the basis of
the total number of shares of Series A Preferred Stock so surrendered.
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f. The Corporation shall at all times reserve and keep available
for issuance upon the conversion of the Series A Preferred Stock, free from any
preemptive rights, such number of its authorized but unissued shares of Common
Stock as will from time to time be sufficient to permit the conversion of all
outstanding shares of Series A Preferred Stock, and shall take all action
required to increase the authorized number of shares of Common Stock if
necessary to permit the conversion of all outstanding shares of Series A
Preferred Stock.
g. The Conversion Ratio will be subject to adjustment from time to
time as follows:
(1) In case the Corporation shall at any time or from time
to time after the Issue Date (A) pay a dividend, or make a distribution, on the
outstanding shares of Common Stock in shares of Common Stock, (B) subdivide the
outstanding shares of Common Stock, (C) combine the outstanding shares of Common
Stock into a smaller number of shares or (D) issue by reclassification of the
shares of Common Stock any shares of capital stock of the Corporation, then, and
in each such case, the Conversion Ratio in effect immediately prior to such
event or the record date therefor, whichever is earlier, shall be adjusted so
that the holder of any shares of Series A Preferred Stock thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common Stock
or other securities of the Corporation which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above, had such shares of Series A Preferred Stock been surrendered for
conversion immediately prior to the happening of such event or the record date
therefor, whichever is earlier. An adjustment made pursuant to this clause (1)
shall become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of such subdivision, reclassification or
combination, immediately after the close of business on the day upon which such
corporate action becomes effective. No adjustment shall be made pursuant to this
clause (1) in connection with any transaction to which paragraph (h) applies.
(2) In case the Corporation shall issue shares of Common
Stock or rights, warrants or other securities convertible into, exercisable or
exchangeable for shares of Common Stock ("Convertible Securities") after the
Issue Date for a consideration per share less than the Current Market Price, as
of the date the Company fixes the offering price of such shares or Convertible
Securities (the "Determination Date"), then, and in each such case, the
Conversion Ratio shall be adjusted so that the holder of each share of Series A
Preferred Stock shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (A) the applicable
Conversion Ratio on the day immediately prior to the date of issuance of such
Common Stock or Convertible Securities by (B) a fraction, the numerator of which
shall be the sum of (1) the number of shares of Common Stock outstanding on such
date and (2) the number of additional shares of Common Stock issued (or the
number issuable upon conversion, exercise or exchange of the Convertible
Securities), and the denominator of which shall be the sum of (x) the number of
shares of Common Stock outstanding on such date and (y) the number of shares of
Common
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Stock which the aggregate consideration receivable by the Corporation for the
total number of shares of Common Stock so issued (or the number issuable upon
conversion, exercise or exchange of the Convertible Securities) would purchase
at the Current Market Price on the Determination Date. If shares of Common Stock
have been publicly traded for more than thirty Trading Days immediately
preceding the Determination Date, for purposes of this clause (2), the Current
Market Price as of the Determination Date shall in all instances be the average
of the Current Market Price of the Common Stock for any consecutive twenty
Trading Days selected by the Corporation commencing no earlier than thirty
Trading Days prior to the Determination Date.
An adjustment made pursuant to this clause (2) shall be
made on the next Business Day following the date on which any such issuance is
made and shall be effective retroactively immediately after the close of
business on such date. For purposes of this clause (2), (i) the aggregate
consideration receivable by the Corporation in connection with the issuance of
shares of Common Stock or Convertible Securities shall be deemed to be equal to
the sum of the aggregate offering price (before deduction of underwriting
discounts or commissions and expenses payable to third parties) of all such
Common Stock and Convertible Securities plus the minimum aggregate amount, if
any, payable upon exercise, conversion or exchange of any Convertible Securities
into shares of Common Stock, (ii) to the extent that the aggregate consideration
receivable consists of services or property other than cash, the value thereof
shall be the Fair Market Value thereof and (iii) from and after the time of the
issuance of Convertible Securities, but subject to the penultimate sentence of
this paragraph, the Corporation shall be deemed to have issued at the time of
the issuance of such Convertible Securities the maximum number of shares of
Common Stock issuable upon exercise, conversion or exchange of such Convertible
Securities. This clause (2) does not apply and no adjustment shall be made on
account of the issuance of any shares of Common Stock or Convertible Securities
by the Corporation pursuant to (a) a dividend or distribution on, or
subdivision, combination or reclassification of, the outstanding shares of
Common Stock requiring an adjustment in the Conversion Ratio pursuant to clause
(1) of this paragraph (g), (b) the terms of any Approved Security, (c) the
Warrants, (d) the Notes, (e) the terms of the Series A Preferred Stock, (f) the
terms of any stock option or employee benefit plan approved by the holders of
the Series A Preferred Stock, (g) any merger of any Person into the Corporation
or with a Subsidiary of the Corporation approved by the holders of the Series A
Preferred Stock, (h) an exchange approved by the holders of the Series A
Preferred Stock of Common Stock with the stockholders of any corporation
provided that such corporation thereupon becomes a Subsidiary of the
Corporation, (i) an exchange approved by the holders of the Series A Preferred
Stock of Common Stock for substantially all of the assets and business of any
Person, (j) a bona fide public offering pursuant to a firm commitment
underwriting or (k) issuances of any shares of Common Stock upon exercise,
conversion or exchange of Convertible Securities in accordance with their terms.
For purposes of the preceding sentence, "approved by the holders of the Series A
Preferred Stock" means approved by the affirmative vote of the holders of at
least a majority of the outstanding shares of Series A Preferred Stock, in
person or by proxy, at an annual meeting of shareholders or at a special meeting
of shareholders held for such purpose as provided in Section 3(d), or by written
consent delivered to the Secretary of the Corporation. Upon the expiration
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unexercised of any Convertible Securities for which an adjustment has been made
pursuant to this clause (2), the adjustments shall forthwith be reversed to
effect such rate of conversion as would have been in effect at the time of such
expiration or termination had such Convertible Securities, to the extent
outstanding immediately prior to such expiration or termination, never been
issued. No adjustment shall be made pursuant to this clause (2) in connection
with any transaction to which paragraph (h) applies.
(3) In case the Corporation shall at any time or from time
to time after the Issue Date distribute to all holders of shares of its Common
Stock, evidences of indebtedness or assets (other than regular cash dividends
and dividends paid out of Current Retained Earnings, as defined below) or any
rights or warrants to purchase evidences of indebtedness or assets at less than
the Fair Market Value thereof, other than dividends or distributions of shares
of Common Stock or Convertible Securities which are referred to in clause (1) of
this paragraph (g) or distributions of Convertible Securities which are referred
to in clause (2) of this paragraph (g), then the Conversion Ratio shall be
adjusted so that the holder of each share of Series A Preferred Stock shall be
entitled to receive, upon the conversion thereof, the number of shares of Common
Stock determined by multiplying (x) the applicable Conversion Ratio on the day
immediately prior to the record date fixed for the determination of shareholders
entitled to receive such distribution by (y) a fraction, the numerator of which
shall be the Current Market Price per share of Common Stock for a period of any
twenty consecutive Trading Days selected by the Corporation commencing no
earlier than thirty Trading Days preceding such record date, and the denominator
of which shall be such Current Market Price per share of Common Stock less the
Fair Market Value per share of Common Stock of such dividend or distribution. An
adjustment made pursuant to this clause (3) shall be made upon the opening of
business on the next Business Day following the date on which any such
distribution is made and shall be effective retroactively immediately after the
close of business on the record date fixed for the determination of shareholders
entitled to receive such distribution. No adjustment shall be made pursuant to
this clause (3) in connection with any transaction to which paragraph (h)
applies. Current Retained Earnings means consolidated retained earnings earned
in the four fiscal quarters immediately preceding the quarter in which the
dividend is paid to the extent such earnings have not previously been paid as
dividends.
(4) For purposes of this paragraph (g), the number of
shares of Common stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the Corporation or any
of its Subsidiaries.
(5) The term "dividend," as used in this paragraph (g)
shall mean a dividend or other distribution upon Common Stock of the
Corporation.
(6) Anything in this paragraph (g) to the contrary
notwithstanding, the Corporation shall not be required to give effect to any
adjustment in the Conversion Ratio unless and until the net effect of one or
more adjustments (each of which shall be carried forward), determined as above
provided, shall have resulted in a change of the Conversion Ratio by at least
one one-hundredth of one share of Common Stock, and when the cumulative
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net effect of more than one adjustment so determined shall be to change the
Conversion Ratio by at least one one-hundredth of one share of Common Stock,
such change in Conversion Ratio shall thereupon be given effect.
(7) The certificate of any firm of independent public
accountants of recognized standing selected by the Board of Directors of the
Corporation (which may be the firm of independent public accountants regularly
employed by the Corporation) shall be presumptively correct for any computation
made under this paragraph (g).
(8) If the Corporation shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of Common
Stock issuable upon exercise of the right of conversion granted by this
paragraph (g) or in the Conversion Ratio then in effect shall be required by
reason of the taking of such record.
h. In case of any capital reorganization or reclassification of
outstanding shares of Common Stock (other than a reclassification covered by
paragraph (g)(1) of this Section 8), or in case of any merger of the Corporation
with or into another corporation other than the Merger, or in case of any sale
or conveyance to another corporation of all or substantially all of the assets
or property of the Corporation (each of the foregoing being referred to as a
"Transaction"), each share of Series A Preferred Stock then outstanding shall
thereafter be convertible into, in lieu of the Common Stock issuable upon such
conversion prior to consummation of such Transaction, the kind and amount of
shares of stock and other securities and property receivable (including cash)
upon the consummation of such Transaction by a holder of that number of shares
of Common Stock into which one share of Series A Preferred Stock was convertible
immediately prior to such Transaction provided that if in connection with the
Transaction a tender or exchange offer shall have been made and there shall have
been acquired pursuant thereto more than 50% of the outstanding shares of Common
Stock, each share of Series A Preferred Stock then outstanding shall thereafter
be convertible into the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of Series A Preferred Stock
had the holder thereof (i) immediately prior to such tender or exchange offer
converted that portion of the share of Series A Preferred Stock equal to the
percentage of shares of the then outstanding Common Stock so purchased in the
tender or exchange offer and accepted such offer and sold therein all of such
shares of Common Stock obtained upon such conversion and (ii) converted the
remaining portion of the share of Series A Preferred Stock into shares of Common
Stock immediately prior to consummation of such Transaction. In any such case,
if necessary, appropriate adjustment (as determined by the Board of Directors)
shall be made in the application of the provisions set forth in this Section 8
with respect to rights and interests thereafter of the holders of shares of
Series A Preferred Stock to the end that the provisions set forth herein for the
protection of the conversion rights of the Series A Preferred Stock shall
thereafter be applicable, as nearly as reasonably may be, to any such other
shares of stock and other securities and property (other than cash) deliverable
upon conversion of the shares of
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Series A Preferred Stock remaining outstanding (with such adjustments in the
conversion price and number of shares issuable upon conversion and such other
adjustments in the provisions hereof as the Board of Directors shall determine
to be appropriate). In case securities or property (including cash) other than
Common Stock shall be issuable or deliverable upon conversion as aforesaid, then
all references in this Section 8 shall be deemed to apply, so far as appropriate
and as nearly as may be, to such other securities or property.
Notwithstanding anything contained herein to the contrary, the
Corporation will not effect any Transaction unless, prior to the consummation
thereof, the Surviving Person (if not the Company) thereof shall assume, by
written instrument delivered to each holder of shares of Series A Preferred
Stock, the obligation to deliver to such holder such cash, or other securities
to which, in accordance with the foregoing provisions, such holder is entitled.
i. In case at any time or from time to time the Corporation shall
pay any dividend or make any other distribution to the holders of its Common
Stock, or shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of stock of any class or any other right, or there
shall be any capital reorganization or reclassification of the Common Stock of
the Corporation or merger of the Corporation with or into another corporation
(other than the Merger), or any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an entirety, or
there shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Corporation, then, in any one or more of said cases the Corporation shall
give at least twenty days prior written notice (the time of mailing of such
notice shall be deemed to be the time of giving thereof) to the registered
holders of the Series A Preferred Stock at the addresses of each as shown on the
books of the Corporation maintained by the Transfer Agent thereof as of the date
on which (i) the books of the Corporation shall close or a record shall be taken
for such stock dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, merger, sale or conveyance, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of the Common Stock of
record shall participate in said dividend, distribution or subscription rights
or shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger, sale or
conveyance or participate in such dissolution, liquidation or winding up, as the
case may be. Failure to give such notice shall not invalidate any action so
taken.
j. Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Series A Preferred Stock, the
Corporation will take all corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue shares of such Common Stock at such adjusted Conversion Price.
k. The Corporation at any time may increase the Conversion Ratio,
temporarily or otherwise, by any amount but in no event shall the Conversion
Price be less
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than the par value of the Common Stock as a result of increase. Whenever the
Conversion Ratio is increased pursuant to this paragraph, the Corporation shall
mail to the holders of shares of Series A Preferred Stock a notice of the
increase. The Corporation shall mail the notice at least 15 days before the date
the increased Conversion Ratio takes effect. The notice shall state the
Conversion Ratio and the period in which it will be in effect. An increase in
the Conversion Ratio pursuant to this paragraph shall not change or affect the
Conversion Ratio otherwise in effect for purposes of paragraphs (1), (2) and (3)
of Section 8(g).
Section 9. Reports as to Adjustments. Upon any adjustment of the
Conversion Ratio then in effect and any increase or decrease in the number of
shares of Common Stock issuable upon the operation of the conversion set forth
in Section 8 hereof, then, and in each such case, the Corporation shall promptly
deliver to the transfer agent of the Series A Preferred Stock and Common Stock,
if any, a certificate signed 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 setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated and specifying
the Conversion Ratio then in effect following such adjustment and the increased
or decreased number of shares issuable upon the conversion set forth in Section
8 hereof. The Corporation shall also promptly after the making of such
adjustment give written notice to the registered holders of the Series A
Preferred Stock at the address of each holder as shown on the books of the
Corporation maintained by the Transfer Agent thereof, which notice shall state
the Conversion Ratio then in effect, as adjusted, and the increased or decreased
number of shares issuable upon the exercise of the right of conversion granted
by Section 8 hereof, and shall set forth in reasonable detail the method of
calculation of each and a brief statement of the facts requiring such
adjustment. Where appropriate, such notice to holders of the Series A Preferred
Stock may be given in advance and included as part of the notice required under
the provisions of Section 8(i) hereof.
Section 10. Certain Covenants. Any registered holder of Series A
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protect and enforce any such rights, whether for the specific enforcement of any
provision in this Article FOURTH, or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 11. Definitions. For the purposes of this Article FOURTH, the
following terms shall have the meanings indicated:
"Adjustment Period" shall mean a period of any consecutive twenty
Trading Days selected by the Corporation commencing no earlier than thirty
Trading Days preceding the date as of which the Fair Market Value of a security
is to be determined.
"Affiliate" of the Corporation means any other Person directly or
indirectly controlling or controlled by or under the direct or indirect common
control with such specified Person, provided, however, that Trefoil, SCA, the
Corporation and any wholly-owned Subsidiaries of the Corporation shall not be
deemed an Affiliate of the Corporation or its
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Subsidiaries for purposes hereof. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by agreement or otherwise.
"Approved Securities" shall mean securities the issuance of which
was approved by the requisite vote of the holders of Series A Preferred Stock
pursuant hereto.
"Business Day" shall mean any day other than Saturday, Sunday or a
day on which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Corporation, as amended from time to time.
"Current Market Price," when used with reference to shares of
Common Stock or other securities on any date, shall mean the closing price per
share of Common Stock or such other securities on such date and, when used with
reference to shares of Common Stock or other securities for any period shall
mean the average of the daily closing prices per share of Common Stock or such
other securities for such period. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading. If the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or such other
system then in use, or, if on any such date the Common Stock or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices furnished by a professional market maker making a market in
the Common Stock or such other securities selected by the Board of Directors of
the Corporation. If the Common Stock or such other securities are not publicly
held or so listed or publicly traded, "Current Market Price" shall mean the Fair
Market Value per share of Common Stock or of such other securities as determined
in good faith by the Board of Directors of the Corporation.
"DGCL" shall mean the Delaware General Corporation Law, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time. Reference to a
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particular section of the Exchange Act shall include reference to the comparable
section, if any, of any such similar Federal statute.
"Fair Market Value" shall mean, as to shares of Common Stock or
any other class of capital stock or securities of the Corporation or any other
issue which are publicly traded, the average of the Current Market Prices of
such shares or securities for each day of the Adjustment Period. The "Fair
Market Value" of any security which is not publicly traded or of any other
property or services shall mean the fair value thereof as determined in good
faith by the Board of Directors of the Corporation or such committee.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession.
"Interest Rate Protection Arrangement" shall mean any interest
rate swap, cap or collar arrangement or any other derivative product customarily
offered by banks to their customers in order to reduce the exposure of such
customers to interest rate fluctuations.
"Issue Date" shall mean the first date on which shares of Series A
Preferred Stock are issued.
"Liquidation Preference" with respect to a share of Series A
Preferred Stock shall mean the Initial Purchase Price, plus an amount equal to
all accrued but unpaid dividends.
"Malrite" means Malrite Communications Group, Inc., an Ohio
corporation.
"Merger" means the merger of Malrite into the Corporation and the
subsequent transfer by this Corporation to Shamrock Broadcasting, Inc., a
Delaware corporation, of all or part of the assets and liabilities of Malrite so
acquired.
"Notes" shall mean the 7-1/2% Convertible Senior Notes due 2003 of
the Corporation, issued pursuant to the Securities Purchase Agreement, and any
notes issued in respect of interest payable thereon.
"Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such entity.
"SCA" means Shamrock Capital Advisors, Inc., a Delaware
corporation.
"Securities Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of July 23, 1993, between the Corporation and Trefoil, as
amended, a copy of which is maintained at the Corporation's principal executive
offices.
22
<PAGE> 24
"Series A Director" shall mean a director of the Corporation
appointed or elected to the Board of Directors of the corporation pursuant to
Section 3(c) hereof by the holders of the Series A Preferred Stock or by a vote
of the Series A Directors pursuant to Section 3(d) hereof.
"Services Agreement" shall mean the letter agreement, dated as of
the Issue Date, between the Corporation and SCA, a copy of which is maintained
at the Corporation's principal executive offices.
"Subsidiary" of any Person means any corporation or other entity
of which a majority of the voting power of the voting equity securities or
equity interest is owned, directly or indirectly, by such Person.
"Surviving Person" shall mean the continuing or surviving Person
of a merger or other business combination, the Person receiving a transfer of
all or a substantial part of the properties and assets of the Corporation, or
the Person merging into the Corporation in a merger or other business
combination in which the Corporation is the continuing or surviving Person, but
in connection with which the Series A Preferred Stock or Common Stock of the
Corporation is exchanged or converted into the securities of any other Person or
cash or any other property; provided, however, if such Surviving Person is a
direct or indirect Subsidiary, such Surviving Person and each direct or indirect
parent entity shall be a Surviving Person.
"Trading Day" means a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Trefoil" means Trefoil Capital Investors, L.P., a Delaware
limited partnership.
"Warrants" means the Warrants issued pursuant to the Warrant
Agreement, dated as of February 15, 1989, between Malrite Communications Group,
Inc. and Shawmut Bank, N.A., as Warrant Agent, to be assumed by the Corporation
in the Merger.
Section 12. Preemptive Rights.
The Series A Preferred Stock is not entitled to any preemptive or
subscription rights in respect of any securities of the Corporation.
B. PREFERRED STOCK.
Except as set forth above with respect to Series A Preferred Stock,
shares of Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to fix by resolution or resolutions
the voting powers, designations, preferences and relative participating,
optional or other rights, if any, and the qualifications,
23
<PAGE> 25
limitations or restrictions thereof, of any wholly unissued series of Preferred
Stock, to fix the number of shares constituting such series and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding)."
FIFTH: The business and affairs of the corporation shall be
managed by the board of directors, and the directors need not be elected by
ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the board of directors is
expressly authorized to make, amend and repeal the by-laws.
SEVENTH: The corporation reserves the right to amend and repeal
any provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware. All rights herein conferred
are granted subject to this reservation.
EIGHTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation
of Trefoil Communications, Inc. has been signed and attested by its duly
authorized officers, this 20th day of December, 1993.
TREFOIL COMMUNICATIONS, INC.
By: /s/ ROBERT G. MOSKOWITZ
---------------------------------
Robert G. Moskowitz
Executive Vice President
Attest:
/s/ GEORGE J. BUCHLER
- --------------------------------
George J. Buchler
Assistant Secretary
24
<PAGE> 26
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "TREFOIL COMMUNICATIONS, INC.", CHANGING ITS NAME FROM "TREFOIL
COMMUNICATIONS, INC." TO "CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC.", FILED
IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386052
DATE: 11-04-98
<PAGE> 27
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TREFOIL COMMUNICATIONS, INC.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Trefoil Communications, Inc. ("Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC."
2. The Board of Directors and Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
TREFOIL COMMUNICATIONS INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 1
EXHIIT 3.63
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC.
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE ONE: OFFICES
<S> <C> <C>
1.1 Registered Office and Agent.................................................................. 1
1.2 Other Offices................................................................................ 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting............................................................................... 1
2.2 Special Meeting.............................................................................. 1
2.3 Place of Meetings............................................................................ 2
2.4 Notice....................................................................................... 2
2.5 Voting List.................................................................................. 2
2.6 Quorum....................................................................................... 3
2.7 Required Vote; Withdrawal of Quorum.......................................................... 3
2.8 Method of Voting; Proxies.................................................................... 3
2.9 Record Date.................................................................................. 3
2.10 Conduct of Meeting........................................................................... 4
2.11 Inspectors................................................................................... 5
ARTICLE THREE: DIRECTORS
3.1 Management................................................................................... 5
3.2 Number; Qualification; Election; Term........................................................ 5
3.3 Change in Number............................................................................. 6
3.4 Removal...................................................................................... 6
3.5 Vacancies.................................................................................... 6
3.6 Meetings of Directors........................................................................ 7
3.7 First Meeting................................................................................ 7
3.8 Election of Officers......................................................................... 7
3.9 Regular Meetings............................................................................. 7
3.10 Special Meetings............................................................................. 7
3.11 Notice....................................................................................... 7
3.12 Quorum; Majority Vote........................................................................ 7
3.13 Procedure.................................................................................... 8
3.14 Presumption of Assent........................................................................ 8
3.15 Compensation................................................................................. 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE FOUR: COMMITTEES
4.1 Designation.................................................................................. 8
4.2 Number; Qualification; Term.................................................................. 8
4.3 Authority.................................................................................... 8
4.4 Committee Changes............................................................................ 9
4.5 Alternate Members of Committees.............................................................. 9
4.6 Regular Meetings............................................................................. 9
4.7 Special Meetings............................................................................. 9
4.8 Quorum; Majority Vote........................................................................ 9
4.9 Minutes...................................................................................... 9
4.10 Compensation................................................................................. 9
4.11 Responsibility................................................................................ 10
ARTICLE FIVE: NOTICE
5.1 Method........................................................................................ 10
5.2 Waiver........................................................................................ 10
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office................................................................ 10
6.2 Removal....................................................................................... 11
6.3 Vacancies..................................................................................... 11
6.4 Authority..................................................................................... 11
6.5 Compensation.................................................................................. 11
6.6 Chairman of the Board......................................................................... 11
6.7 President..................................................................................... 11
6.8 Vice Presidents............................................................................... 11
6.9 Treasurer..................................................................................... 12
6.10 Assistant Treasurers.......................................................................... 12
6.11 Secretary..................................................................................... 12
6.12 Assistant Secretaries......................................................................... 12
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares....................................................................... 12
7.2 Replacement of Lost, Stolen, or Destroyed Certificates........................................ 13
7.3 Transfer of Shares............................................................................ 13
7.4 Registered Stockholders....................................................................... 13
7.5 Regulations................................................................................... 13
7.6 Legends....................................................................................... 13
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends..................................................................................... 14
8.2 Reserves...................................................................................... 14
8.3 Books and Records............................................................................. 14
8.4 Fiscal Year................................................................................... 14
8.5 Seal.......................................................................................... 14
8.6 Resignations.................................................................................. 14
8.7 Securities of Other Corporations.............................................................. 14
8.8 Telephone Meetings............................................................................ 14
8.9 Action Without a Meeting...................................................................... 15
8.10 Invalid Provisions............................................................................ 15
8.11 Mortgages, etc................................................................................ 16
8.12 Headings...................................................................................... 16
8.13 References.................................................................................... 16
8.14 Amendments.................................................................................... 16
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "DGCL") and the certificate of incorporation
of Chancellor Media/Trefoil Communications, Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the DGCL or the provisions of the
certificate of incorporation of the Corporation, such provisions of the DGCL or
the certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President or the board of
directors. Further, a special meeting of the stockholders shall be called by the
President or the Secretary at the request in writing of the stockholders of
record of not less than ten percent of all shares entitled to vote
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<PAGE> 6
at such meeting or as otherwise provided by the certificate of incorporation of
the Corporation. A special meeting shall be held on such date and at such time
as shall be designated by the person(s) calling the meeting and stated in the
notice of the meeting or in a duly executed waiver of notice of such meeting.
Only such business shall be transacted at a special meeting as may be stated or
indicated in the notice of such meeting or in a duly executed waiver of notice
of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 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
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, notice is given
when deposited in the United States mail, postage prepaid, directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare and make a complete list of stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. For a period of
at least ten days prior to such meeting, such list shall be kept on file at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder, for any purpose germane to
the meeting, during ordinary business hours. Such list shall also be produced at
such meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2
<PAGE> 7
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation or any amendment(s) thereto, or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by another person or persons duly authorized under
ss. 212 of the DGCL to act for him as proxy. Each 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 three years from the date of its execution, unless
otherwise provided in the proxy. If no date is stated in a proxy, such proxy
shall be presumed to have been executed on the date of the meeting at which it
is to be voted. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and coupled with an interest sufficient in law to support an
irrevocable power or unless otherwise made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, 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
3
<PAGE> 8
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 by the board of directors, and which record
date shall not be more than 60 days and not less than ten days prior to such
meeting. If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, 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
in the State of Delaware, principal place of business, or such officer or agent
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 law or these bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's
4
<PAGE> 9
duties shall be performed by the officer given the authority to act for such
absent or non-acting officer under these bylaws or by some person appointed by
the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting and make
a written report thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and ballots 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
results, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by them, certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. The inspector(s) shall
perform his duties in accordance with ss. 231 of the DGCL. On request of the
chairman of the meeting, the inspectors shall make a report in writing of any
challenge, request, or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors
which shall constitute the entire board of directors shall be not less than one.
The first board of directors shall consist of the number of directors named in
the certificate of incorporation of the Corporation. In which case a change in
the number of directors shall be made only by amendment of the certificate. If
no directors are named in the certificate of incorporation, the first board of
directors shall consist of the number of directors elected by the
incorporator(s) at an organizational meeting or by unanimous written consent in
lieu thereof. Thereafter, within the limits above specified, the number of
directors which shall constitute the entire board of directors shall be
determined by resolution of the board of directors or by resolution of the
stockholders at the annual meeting thereof or at a special meeting thereof
called for that purpose. Except as otherwise required by law, the certificate of
incorporation of the
5
<PAGE> 10
Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each director so chosen
shall hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director 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 then entitled to vote on the election of directors; provided,
however, that so long as stockholders have the right to cumulate votes in the
election of directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed, no one
of the directors 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.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least 10% of the
total number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly-created directorships, or to replace the directors chosen by
the directors then in office. Except as otherwise provided in these bylaws, 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 the 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 in these
bylaws with respect to the filling of other vacancies.
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<PAGE> 11
3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. 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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
7
<PAGE> 12
3.13 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at the 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
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.15 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the board of directors in the management of the business
and affairs of the Corporation except to
8
<PAGE> 13
the extent expressly restricted by law, the certificate of incorporation of the
Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for placement in the
minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
9
<PAGE> 14
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall resign
or shall have been removed in the manner hereinafter provided. Any two or more
offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
10
<PAGE> 15
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the Board
or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, 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.
11
<PAGE> 16
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer,
12
<PAGE> 17
transfer agent, or registrar before such certificate is issued, such certificate
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. The 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.
7.2 Replacement of Lost, Stolen, or Destroyed Certificates. The board
of directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates 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 or certificates representing
shares to be lost, stolen, 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,
stolen, 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 with a surety or sureties satisfactory to the Corporation in
such sum as it may direct as indemnity against any claim, or expense resulting
from a claim, that may be made against the Corporation with respect to the
certificate or certificates alleged to have been lost, stolen, or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 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.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
13
<PAGE> 18
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the board of directors, and members of a committee of the
board of directors may
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<PAGE> 19
participate in and hold a meeting of such stockholders, board of directors, or
committee by means of a conference telephone or similar communications equipment
by means of which persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the DGCL
to be taken at any annual or special meeting of the stockholders, 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 (acting for themselves or through a proxy) 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 the holders of all shares
entitled to vote thereon were present and voted and shall be 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. Every written consent of stockholders 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
days of the earliest dated consent delivered in the manner required by this
Section 8.9(a) to the Corporation, written consents signed by a sufficient
number of holders to take action are 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, principal place of business, or such officer or
agent shall be by hand or by certified or registered mail, return receipt
requested.
(b) Unless otherwise restricted by the certificate of incorporation of
the Corporation or by these bylaws, any action required or permitted to be taken
at a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
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<PAGE> 20
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or
new bylaws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
16
<PAGE> 1
EXHIBIT 3.64
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SHAMROCK BROADCASTING, INC.", FILED IN THIS OFFICE ON THE
NINETEENTH DAY OF SEPTEMBER, A.D. 1986, AT 1:01 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386060
DATE: 11-04-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
SHAMROCK BROADCASTING, INC.
FIRST: The name of the corporation is Shamrock Broadcasting, Inc.
SECOND: The address of the registered office of the corporation in the
State of Delaware is 1105 North Market Street, Post Office Box 1347, Wilmington,
New Castle County, Delaware 19899. The name of the agent of the corporation at
such address is Delaware Corporation Organizers, Inc.
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 is
authorized to issue is one thousand (1,000) shares of common stock, having a par
value of ten cents ($.10) per share.
FIFTH: The business and affairs of the corporation shall be managed by
the board of directors, and the directors need not be elected by ballot unless
required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to adopt,
<PAGE> 3
amend or repeal the by-laws.
SEVENTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
EIGHTH: The incorporator is Siobain Mulhern, whose mailing address
is 1105 North Market Street, P.O. Box 1347, Wilmington, Delaware 19899.
IN WITNESS WHEREOF, the undersigned incorporator has signed this
Certificate of Incorporation, September 18, 1986, for the purpose of forming
this corporation under the laws of the State of Delaware.
/s/ SIOBAIN M. MULHERN (SEAL)
----------------------------
<PAGE> 4
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "SHAMROCK BROADCASTING, INC.", FILED IN THIS OFFICE ON THE
TENTH DAY OF OCTOBER, A.D. 1986, AT 10 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386059
DATE: 11-04-98
<PAGE> 5
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
SHAMROCK BROADCASTING, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is Delaware Corporation
Organizers, Inc. and the present registered office of the corporation is in the
county of New Castle.
The Board of Directors of SHAMROCK BROADCASTING, INC. adopted the
following resolution on the 30th day of September, 1986.
Resolved, that the registered office of SHAMROCK BROADCASTING, INC.
in the state of Delaware be and it hereby is changed to Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, and the authorization of the present registered agent of this
corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST
COMPANY, shall be and is hereby constituted and appointed the registered
agent of this corporation at the address of its registered office.
IN WITNESS WHEREOF, Shamrock Broadcasting, Inc. has caused this statement
to be signed by James R. Mixon, its Executive Vice President and attested by
Karen K. Merrell, its Secretary, this 30th day of September, 1986.
By /s/ JAMES R. MIXON
---------------------
Executive Vice President
James R. Mixon
ATTEST:
By: /s/ KAREN K. MERRELL
--------------------
Secretary
Karen K. Merrell
<PAGE> 6
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "SHAMROCK BROADCASTING, INC.", CHANGING ITS NAME FROM "SHAMROCK
BROADCASTING, INC." TO "CHANCELLOR MEDIA/SHAMROCK BROADCASTING, INC.", FILED IN
THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386058
DATE: 11-04-98
<PAGE> 7
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SHAMROCK BROADCASTING, INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Shamrock Broadcasting, Inc. ("Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA/SHAMROCK BROADCASTING, INC."
2. The Board of Directors and Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
SHAMROCK BROADCASTING, INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 1
EXHIBIT 3.65
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/SHAMROCK BROADCASTING, INC.
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 Required Vote; Withdrawal of Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.8 Method of Voting; Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.9 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10 Conduct of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.11 Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE THREE: DIRECTORS
3.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Number; Qualification; Election; Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Change in Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Meetings of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.7 First Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Election of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.9 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.10 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.11 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.12 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.13 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.14 Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.15 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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<TABLE>
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ARTICLE FOUR: COMMITTEES
4.1 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Number; Qualification; Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Committee Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.5 Alternate Members of Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.10 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.11 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FIVE: NOTICE
5.1 Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.2 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.5 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.7 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.8 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.9 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.10 Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.11 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.12 Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.2 Replacement of Lost, Stolen, or Destroyed Certificates . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.6 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
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<TABLE>
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ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.2 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.3 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.4 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.5 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.6 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.7 Securities of Other Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.8 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.9 Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.10 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.11 Mortgages, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.13 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.14 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
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<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/SHAMROCK BROADCASTING, INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "DGCL") and the certificate of incorporation
of Chancellor Media/Shamrock Broadcasting, Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the DGCL or the provisions of the
certificate of incorporation of the Corporation, such provisions of the DGCL or
the certificate of incorporation of the Corporation, as the case may be, will
be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President or the board of
directors. Further, a special meeting of the stockholders shall be called by
the President or the Secretary at the request in writing of the stockholders of
record of not less than ten percent of all shares entitled to vote
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at such meeting or as otherwise provided by the certificate of incorporation of
the Corporation. A special meeting shall be held on such date and at such time
as shall be designated by the person(s) calling the meeting and stated in the
notice of the meeting or in a duly executed waiver of notice of such meeting.
Only such business shall be transacted at a special meeting as may be stated or
indicated in the notice of such meeting or in a duly executed waiver of notice
of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be
held at any place within or without the State of Delaware designated by the
board of directors. A special meeting of stockholders may be held at any place
within or without the State of Delaware designated in the notice of the meeting
or a duly executed waiver of notice of such meeting. Meetings of stockholders
shall be held at the principal office of the Corporation unless another place
is designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and
time of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 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 officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, notice
is given when deposited in the United States mail, postage prepaid, directed to
such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any meeting
of stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare and make a complete list of stockholders entitled to
vote thereat, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. For a period of at least ten days prior to such meeting, such
list shall be kept on file at a place within the city where the meeting is to
be held, which place shall be specified in the notice of meeting or a duly
executed waiver of notice of such meeting or, if not so specified, at the place
where the meeting is to be held and shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours. Such list shall also be produced at such meeting and kept at the
meeting at all times during such meeting and may be inspected by any
stockholder who is present.
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2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders,
the stockholders entitled to vote thereat who are present, in person or by
proxy, or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other
than announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present
at any meeting, the vote of the holders of at least a majority of the
outstanding shares entitled to vote who are present, in person or by proxy,
shall decide any question brought before such meeting, unless the question is
one on which, by express provision of statute, the certificate of incorporation
of the Corporation or any amendment(s) thereto, or these bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in
the certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by another person or persons duly authorized
under Section 212 of the DGCL to act for him as proxy. Each 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 three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, 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
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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 by the board of directors, and which record
date shall not be more than 60 days and not less than ten days prior to such
meeting. If no record date is fixed:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law or these bylaws, 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 in the State of Delaware, principal place of business, or such officer
or agent 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 law or these bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office
has been filled, and, if not or if the Chairman of the Board is absent or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's
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<PAGE> 9
duties shall be performed by the officer given the authority to act for such
absent or non-acting officer under these bylaws or by some person appointed by
the meeting.
2.11 Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
and make a written report thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors
shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number
of shares represented at the meeting, the existence of a quorum, and the
validity and effect of proxies and ballots 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 results, determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by them, certify
their determination of the number of shares represented at the meeting, and
their count of all votes and ballots, and do such acts as are proper to conduct
the election or vote with fairness to all stockholders. The inspector(s) shall
perform his duties in accordance with Section 231 of the DGCL. On request of
the chairman of the meeting, the inspectors shall make a report in writing of
any challenge, request, or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall
be managed by the board of directors. Subject to the restrictions imposed by
law, the certificate of incorporation of the Corporation, or these bylaws, the
board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of
directors which shall constitute the entire board of directors shall be not
less than one. The first board of directors shall consist of the number of
directors named in the certificate of incorporation of the Corporation. In
which case a change in the number of directors shall be made only by amendment
of the certificate. If no directors are named in the certificate of
incorporation, the first board of directors shall consist of the number of
directors elected by the incorporator(s) at an organizational meeting or by
unanimous written consent in lieu thereof. Thereafter, within the limits above
specified, the number of directors which shall constitute the entire board of
directors shall be determined by resolution of the board of directors or by
resolution of the stockholders at the annual meeting thereof or at a special
meeting thereof called for that purpose. Except as otherwise required by law,
the certificate of incorporation of the
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Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each
director so chosen shall hold office until the first annual meeting of
stockholders held after his election and until his successor is elected and
qualified or, if earlier, until his death, resignation, or removal from office.
None of the directors need be a stockholder of the Corporation or a resident of
the State of Delaware. Each director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of
stockholders called expressly for that purpose, any director 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 then entitled to vote on the election of
directors; provided, however, that so long as stockholders have the right to
cumulate votes in the election of directors pursuant to the certificate of
incorporation of the Corporation, if less than the entire board of directors is
to be removed, no one of the directors 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.
3.5 Vacancies. Vacancies and newly-created directorships
resulting from any increase in the authorized number of directors elected by
all of the stockholders having the right to vote as a single class may be
filled by a majority of the directors then in office, although less than a
quorum, or by the sole remaining director, and each director so chosen shall
hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. If there are no directors in
office, an election of directors may be held in the manner provided by statute.
If, at the time of filling any vacancy or any newly-created directorship, the
directors then in office shall constitute less than a majority of the whole
board of directors (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least 10% of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly-created directorships, or to replace
the directors chosen by the directors then in office. Except as otherwise
provided in these bylaws, 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 the 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 in these bylaws with respect to the filling of
other vacancies.
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3.6 Meetings of Directors. The directors may hold their meetings
and may have an office and keep the books of the Corporation, except as
otherwise provided by statute, in such place or places within or without the
State of Delaware as the board of directors may from time to time determine or
as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
3.7 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 stockholders, and no notice of such meeting shall be
necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time to time
by resolution of the board of directors. Notice of such regular meetings shall
not be required.
3.10 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.11 Notice. The Secretary shall give notice of each special
meeting to each director at least 24 hours before the meeting. Notice of any
such meeting need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting without protesting, prior to or at its commencement, the lack of notice
to him. 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.
3.12 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in these
bylaws shall constitute a quorum for the transaction of business. If at any
meeting of the board of directors there be less than a quorum present, a
majority of those present or any director solely present may adjourn the
meeting from time to time without further notice. Unless the act of a greater
number is required by law, the certificate of incorporation of the Corporation,
or these bylaws, the act of a majority of the directors present at a meeting at
which a quorum is in attendance shall be the act of the board of directors. At
any time that the certificate of incorporation of the Corporation provides that
directors elected by the holders of a class or series of stock shall have more
or less than one vote per director on any matter, every reference in these
bylaws to a majority or other proportion of directors shall refer to a majority
or other proportion of the votes of such directors.
7
<PAGE> 12
3.13 Procedure. At meetings of the board of directors, business
shall be transacted in such order as from time to time the board of directors
may determine. The Chairman of the Board, if such office has been filled, and,
if not or if the Chairman of the Board is absent or otherwise unable to act,
the President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of
the Corporation shall act as the secretary of each meeting of the board of
directors unless the board of directors appoints another person to act as
secretary of the meeting. The board of directors shall keep regular minutes of
its proceedings which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at the 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
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.15 Compensation. The board of directors shall have the authority
to fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution
adopted by a majority of the entire board of directors, designate one or more
committees.
4.2 Number; Qualification; Term. Each committee shall consist of
one or more directors appointed by resolution adopted by a majority of the
entire board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the
earliest of (i) the expiration of his term as director, (ii) his resignation as
a committee member or as a director, or (iii) his removal as a committee member
or as a director.
4.3 Authority. Each committee, to the extent expressly provided
in the resolution establishing such committee, shall have and may exercise all
of the powers and authority of the board of directors in the management of the
business and affairs of the Corporation except to
8
<PAGE> 13
the extent expressly restricted by law, the certificate of incorporation of the
Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the
power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any
such alternate member may replace any absent or disqualified member at any
meeting of the committee. If no alternate committee members have been so
appointed to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be
held without notice at such time and place as may be designated from time to
time by the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be
held whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting of any committee need
be specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors shall
constitute a quorum for the transaction of business. If a quorum is not
present at a meeting of any committee, a majority of the members present may
adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is present. The act of a majority
of the members present at any meeting at which a quorum is in attendance shall
be the act of a committee, unless the act of a greater number is required by
law, the certificate of incorporation of the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the board of directors
upon the request of the board of directors. The minutes of the proceedings of
each committee shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the
board of directors, be allowed a fixed sum and expenses of attendance, if any,
for attending any committee meetings or a stated salary.
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<PAGE> 14
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation
of the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice
required or permitted to be given by telegram, telex, or telefax shall be
deemed to be delivered and given at the time transmitted with all charges
prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the
Corporation shall be a President, a Secretary, and such other officers as the
board of directors may from time to time elect or appoint, including a Chairman
of the Board, one or more Vice Presidents (with each Vice President to have
such descriptive title, if any, as the board of directors shall determine), and
a Treasurer. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner hereinafter provided. Any two
or more offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
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<PAGE> 15
6.2 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled by the
board of directors.
6.4 Authority. Officers shall have such authority and perform
such duties in the management of the Corporation as are provided in these
bylaws or as may be determined by resolution of the board of directors not
inconsistent with these bylaws.
6.5 Compensation. The compensation, if any, of officers and
agents shall be fixed from time to time by the board of directors; provided,
however, that the board of directors may delegate the power to determine the
compensation of any officer and agent (other than the officer to whom such
power is delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected
by the board of directors, shall have such powers and duties as may be
prescribed by the board of directors. Such officer shall preside at all
meetings of the stockholders and of the board of directors. Such officer may
sign all certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer
of the Corporation and, subject to the board of directors, he shall have
general executive charge, management, and control of the properties and
operations of the Corporation in the ordinary course of its business, with all
such powers with respect to such properties and operations as may be reasonably
incident to such responsibilities. If the board of directors has not elected a
Chairman of the Board or in the absence or inability to act of the Chairman of
the Board, the President shall exercise all of the powers and discharge all of
the duties of the Chairman of the Board. As between the Corporation and third
parties, any action taken by the President in the performance of the duties of
the Chairman of the Board shall be conclusive evidence that there is no
Chairman of the Board or that the Chairman of the Board is absent or unable to
act.
6.8 Vice Presidents. Each Vice President shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President, and (in order of their seniority as determined by
the board of directors or, in the absence of such determination, as determined
by the length of time they have held the office of Vice President) shall
exercise the powers of the President during that officer's absence or inability
to act. As between the Corporation and third parties, 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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<PAGE> 16
6.9 Treasurer. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate account of
receipts and disbursements, shall deposit all monies and valuable effects in
the name and to the credit of the Corporation in such depository or
depositories as may be designated by the board of directors, and shall perform
such other duties as may be prescribed by the board of directors, the Chairman
of the Board, or the President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have
such powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with
the Chairman of the Board or the President all certificates for shares of stock
of the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which
shall at all reasonable times be open to inspection by any director upon
application at the office of the Corporation during business hours. He shall
in general perform all duties incident to the office of the Secretary, subject
to the control of the board of directors, the Chairman of the Board, and the
President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of
the Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or
the President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all
signatures on the certificate may be a facsimile and may be sealed with the
seal of the Corporation or a facsimile thereof. If any officer, transfer
agent, or registrar who has signed, or whose facsimile signature has been
placed upon, a certificate has ceased to be such officer,
12
<PAGE> 17
transfer agent, or registrar before such certificate is issued, such
certificate 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. The
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.
7.2 Replacement of Lost, Stolen, or Destroyed Certificates. The
board of directors may direct a new certificate or certificates to be issued in
place of a certificate or certificates 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 or certificates
representing shares to be lost, stolen, 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, stolen, 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 with a surety or sureties satisfactory to
the Corporation in such sum as it may direct as indemnity against any claim, or
expense resulting from a claim, that may be made against the Corporation with
respect to the certificate or certificates alleged to have been lost, stolen,
or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall
be transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 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.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state
securities laws or other applicable law.
13
<PAGE> 18
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate
of incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and
payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out
of funds of the Corporation legally available therefor such reserve or reserves
as the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain any
property of the Corporation, or for such other purpose as the board of
directors shall consider beneficial to the Corporation, and the board of
directors may modify or abolish any such reserve in the manner in which it was
created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be
fixed by the board of directors; provided, that if such fiscal year is not
fixed by the board of directors and the selection of the fiscal year is not
expressly deferred by the board of directors, the fiscal year shall be the
calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time
to time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board,
the President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors, and members of a committee
of the board of directors may
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<PAGE> 19
participate in and hold a meeting of such stockholders, board of directors, or
committee by means of a conference telephone or similar communications
equipment by means of which persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this section shall constitute
presence in person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in
the certificate of incorporation of the Corporation, any action required by the
DGCL to be taken at any annual or special meeting of the stockholders, 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 (acting for themselves or through a proxy) 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 the holders of all
shares entitled to vote thereon were present and voted and shall be 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. Every written consent of stockholders 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 days of the earliest dated consent delivered in the manner
required by this Section 8.9(a) to the Corporation, written consents signed by
a sufficient number of holders to take action are 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, principal place of
business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
(b) Unless otherwise restricted by the certificate of
incorporation of the Corporation or by these bylaws, any action required or
permitted to be taken at a meeting of the board of directors, or of any
committee of the board of directors, may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all the directors or all the committee members, as the case may be,
entitled to vote with respect to the subject matter thereof, and such consent
shall have the same force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any certificate or
document filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be filed
with the minutes of proceedings of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
15
<PAGE> 20
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these bylaws have been
inserted for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.13 References. Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed
or new bylaws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
16
<PAGE> 1
EXHIBIT 3.66
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "SHAMROCK RADIO LICENSES, INC.", CHANGING ITS NAME FROM "SHAMROCK RADIO
LICENSES, INC." TO "CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, INC.", FILED IN
THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8712624
DATE: 10-21-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SHAMROCK RADIO LICENSES, INC.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Shamrock Radio Licenses, Inc. ("Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, INC."
2. The Board of Directors and Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
SHAMROCK RADIO LICENSES, INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
-------------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 3
[CT CORPORATION SYSTEM LETTERHEAD]
Dear Ms. Gruhl:
Re: Shamrock Radio Licenses, Inc.
Shamrock Broadcasting, Inc.
Pursuant to instructions received, the Certificate of Change of Registered Agent
and Registered Office for each of the above corporations were filed in the
office of the Secretary of State of Delaware on October 14, 1997, at 9:00 a.m.,
and a certified copy of each thereof is being forwarded by the Secretary of
State to the Recorder of Deeds of New Castle County, Wilmington, Delaware.
We enclose one certified copy of the Certificate of Change of Registered Agent
and Registered Office for each of the above corporations.
Thanks, again.
Marcy C. Kinnamon
Senior Customer Specialist
MCK/sac
Enc.
FEDERAL EXPRESS
998098
Washington, D.C./Sharif
Sonja Gruhl
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
<PAGE> 4
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "SHAMROCK RADIO LICENSES, INC.", FILED IN THIS OFFICE ON
THE FOURTEENTH DAY OF OCTOBER, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ EDWARD J. FREEL
----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8700833
DATE: 10-14-97
<PAGE> 5
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
SHAMROCK RADIO LICENSES, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is Delaware
Corporation Organizers, Inc., 1201 N. Market Street, P.O. Box 1347, Wilmington,
Delaware 19801 and the present registered office of the corporation is in the
county of New Castle;
The Board of Directors of SHAMROCK RADIO LICENSES, INC. adopted the
following resolution on the 8th day of October, 1997.
RESOLVED, that the registered office of SHAMROCK RADIO LICENSES, INC.
in the state of Delaware be and it hereby is changed to Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle,
and the authorization of the present registered agent of this corporation be
and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be
and is hereby constituted and appointed the registered agent of this
corporation at the address of its registered office.
IN WITNESS WHEREOF, SHAMROCK RADIO LICENSES, INC. has caused this
statement to be signed by Omar Choucair, its Vice President, this 9th day of
October, 1997.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Vice President
<PAGE> 6
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SHAMROCK RADIO LICENSES, INC." FILED IN THIS OFFICE ON THE
FOURTEENTH DAY OF JULY, A.D. 1993, AT 1 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * *
[SEAL] /s/ WILLIAM T. QUILLEN
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William T. Quillen, Secretary of State
AUTHENTICATION: *3976808
DATE: 07/15/1993
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:00 PM 07/14/1993
633195003 - 2343691
CERTIFICATE OF INCORPORATION
OF
SHAMROCK RADIO LICENSES, INC.
FIRST: The name of the corporation is Shamrock Radio Licenses, Inc.
SECOND: The address of the corporation's registered office in the State
of Delaware is 1201 North Market Street, Post Office Box 1347, in the City of
Wilmington, County of New Castle. The name of the corporation's registered
agent at such address is Delaware Corporation Organizers, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one cent ($.01) per share.
FIFTH: The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, and the directors need not be
elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal the by-laws.
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SEVENTH: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for 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 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
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 this
provision shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: The incorporator is Siobain M. Perkins, whose mailing address is
P.O. Box 1347, Wilmington, Delaware 19899.
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I, THE UNDERSIGNED, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware do make, file and
record this Certificate of Incorporation, and, accordingly, have hereto set my
hand this 14th day of July, 1993.
/s/ SIOBAIN M. PERKINS
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Siobain M. Perkins
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EXHIBIT 3.67
SHAMROCK RADIO LICENSES, INC.
BY-LAWS
ARTICLE I - STOCKHOLDERS
Section 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 2. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Board of Directors
or the chief executive officer and shall be held at such place, on such date,
and at such time as they or he or she shall fix.
Section 3. 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).
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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 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 4. 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.
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Section 5. 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 6. 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 7. 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
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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 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.
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Section 8. 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 9. 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
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shall be delivered to the Corporation by delivery to its registered office in
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 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
the earliest dated consent is 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.
ARTICLE II - BOARD OF DIRECTORS
Section 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 three
(3). 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
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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. 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.
Section 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 4. Special Meetings.
Special meetings of the Board of Directors may be called by one-third (1/3)
of the directors then in office (rounded up to the nearest whole number) or by
the chief executive officer and shall be held at such place, 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 five (5) days before the meeting
or by telegraphing or telexing or by facsimile transmission of the same not less
than twenty-four (24) hours
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before the meeting. Unless otherwise indicated in the notice thereof, any and
all business may be transacted at a special meeting.
Section 5. 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 6. 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 7. 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.
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Section 8. 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:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(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;
(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;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt form 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;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers,
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employees and agents of the Corporation and its subsidiaries as it may
determine; and,
(8) To adopt from time to time regulations, not inconsistent with
these By-laws, for the management of the Corporation's business and
affairs.
Section 9. 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 III - COMMITTEES
Section 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
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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 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.
ARTICLE IV - OFFICERS
Section 1. Generally.
The officers of the Corporation shall consist of 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
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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 2. President.
The President shall be the chief executive officer of the Corporation.
Subject to the provisions of these By-laws 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 3. 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. 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
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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 5. 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.
Section 6. 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 7. Removal.
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
Section 8. 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.
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ARTICLE V - STOCK
Section 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 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 4 of Article V of these
By-laws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 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 (9) days before the date of any meeting of
stockholders, nor more
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than sixty (60) days prior to the time for such other action as hereinbefore
described; provided, however, that 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 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 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
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a signed written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation in the manner prescribed by Article I, Section 9
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 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. 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 VI - NOTICES
Section 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
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recipient thereof, by depositing such notice in the mails, postage paid, or by
sending such notice by prepaid telegram or mailgram. Any such notice shall be
addressed to such stockholder, director, officer, 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.
Section 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 VII - MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these By-laws, 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 2. Corporate Seal.
The Board of Directors may 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
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kept and used by the Treasurer or by an Assistant Secretary or Assistant
Treasurer.
Section 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 4. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 5. Time Periods.
In applying any provision of these By-laws 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.
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ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 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, 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 hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than 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 3 of this ARTICLE VIII with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection
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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 2. Right to Advancement of Expenses.
The right to indemnification conferred in Section 1 of this ARTICLE VIII
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 no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 2 or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections 1 and 2 of this ARTICLE VIII
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.
- 20 -
<PAGE> 21
Section 3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of this ARTICLE VIII 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 undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
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
- 21 -
<PAGE> 22
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 VIII or
otherwise shall be on the Corporation.
Section 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses conferred
in this ARTICLE VIII 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, By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 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.
- 22 -
<PAGE> 23
Section 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 with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE IX - AMENDMENTS
These By-laws may be amended or repealed by the Board of Directors at any
meeting or by the stockholders at any meeting.
-23-
<PAGE> 1
EXHIBIT 3.68
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SHAMROCK BROADCASTING LICENSES OF DENVER, INC.", FILED IN
THIS OFFICE ON THE TWENTIETH DAY OF SEPTEMBER, A.D. 1996, AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE STATE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8113592
DATE: 09-20-96
2665179 8100
960273209
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter called the "Corporation") under the General Corporation
Law of the State of Delaware, do hereby adopt the following Certificate of
Incorporation for the Corporation:
FIRST: The name of the Corporation is SHAMROCK BROADCASTING LICENSES OF
DENVER, INC.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any and all lawful acts and activity for which corporations may be organized
under the General Corporation Law of Delaware. The Corporation will have
perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares, par value $.01 per share, designated
Common Stock.
FIFTH: The name of the incorporator of the Corporation is Todd R. Chandler,
and the mailing address of such incorporator is 100 Crescent Court, Suite 1300,
Dallas, Texas 75201-6950.
SIXTH: The number of directors constituting the initial board of directors
is three, and the name and mailing address of each person who is to serve as
director until the first annual meeting of stockholders or until his successor
is elected and qualified are:
Steve Dinetz 12655 North Central Expressway, Suite 405,
Dallas, Texas 75243
Jeffrey A. Marcus 12655 North Central Expressway, Suite 405,
Dallas, Texas 75243
John H. Massey 12655 North Central Expressway, Suite 405,
Dallas, Texas 75243
<PAGE> 3
SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation otherwise provide.
EIGHTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the bylaws of the Corporation.
NINTH: No contract or transaction between the Corporation and one or more
of its directors, officers, or stockholders or between the Corporation and any
person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her, or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved, or ratified by the board of directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
TENTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, 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, to the
fullest extent permitted under the Delaware General Corporation Law, as the
same exists or may hereafter be amended. Such right shall be a contract right
and as such shall run to the benefit of any director or officer who is elected
and accepts the position of director or officer of the Corporation or elects to
continue to serve as a director or officer of the Corporation while this
Article Tenth is in effect. Any repeal or amendment of this Article Tenth shall
be prospective only and shall not limit the
2
<PAGE> 4
rights of any such director or officer or the obligations of the Corporation
with respect to any claim arising from or related to the services of such
director or officer in any of the foregoing capacities prior to any such
repeal or amendment to this Article Tenth. Such right shall include the right
to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the Delaware General Corporation Law, as the same exists or may hereafter
be amended. If a claim for indemnification or advancement of expenses hereunder
is not paid in full by the Corporation within sixty (60) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the Delaware General Corporation Law, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its board of directors or any committee thereof,
independent legal counsel, or stockholders) to have made its determination
prior to the commencement of such action that indemnification of, or
advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including its
board of directors or any committee thereof, independent legal counsel, or
stockholders) that such indemnification or advancement is not permissible shall
be a defense to the action or create a presumption that such indemnification or
advancement is not permissible. In the event of the death of any person having
a right of indemnification under the foregoing provisions, such right shall
inure to the benefit of his or her heirs, executors, administrators, and
personal representatives. The rights conferred above shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, by-law, resolution of stockholders or directors, agreement, or
otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
ELEVENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for 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 faith or which involve
3
<PAGE> 5
intentional misconduct or 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. Any repeal or amendment of
this Article Eleventh by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation arising from an act or omission
occurring prior to the time of such repeal or amendment. In addition to the
circumstances in which a director of the Corporation is not personally liable
as set forth in the foregoing provisions of this Article Eleventh, a director
shall not be liable to the Corporation or its stockholders to such further
extent as permitted by any law hereafter enacted, including without limitation
any subsequent amendment to the Delaware General Corporation Law.
TWELFTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of Delaware.
I, the undersigned, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated herein are true and, accordingly, I do hereunto set my hand on this 20th
day of September, 1996.
/s/ Todd R. Chandler
-------------------------
Todd R. Chandler
4
<PAGE> 6
CLIENT NO. 34982.0021 DATE: 05/08/97
- -------------------------------------------------------------------------------
CORPORATE MAINTENANCE INFORMATION
NAME OF ENTITY: Shamrock Broadcasting Licenses of Denver, Inc.
ADDRESS OF ENTITY:
DATE OF INCORPORATION: September 20, 1996
STATE OF INCORPORATION: Delaware
CHARTER NO.: 2665179
CERTIFICATE AMENDED: N/A
QUALIFIED TO DO BUSINESS IN:
REGISTERED AGENT: Corporation Trust Center
ADDRESS: 1209 Orange Street
Wilmington, Delaware 19801
FEDERAL EIN: N/A
ELECTION OF SUB S CORP:
FISCAL YEAR ENDS: Fixed by Directors or Calendar Year
INCORPORATOR: Todd R. Chandler
ADDRESS: Weil, Gotshal & Manges
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
<PAGE> 7
- --------------------------------------------------------------------------------
SHARES AUTHORIZED AS NUMBER TYPE PAR VALUE
OF 9/20/96: ------ ------ ---------
1,000 Common $.01
- --------------------------------------------------------------------------------
TOTAL AUTHORIZED 1,000
- --------------------------------------------------------------------------------
SHARES ISSUED TO: NO. SHARES CERT. NO. DOMICILE
---------- --------- --------
Shamrock Broadcasting, Inc. 1,000 1
DIRECTORS AS OF 9/20/96:
Steve Dinetz
Jeffrey A. Marcus
John H. Massey
OFFICERS AS OF 9/20/96:
NAME OFFICE
---- ------
Steven Dinetz President, Chief Executive
Officer and Secretary
Eric W. Neumann Senior Vice President and
Assistant Secretary
Jacques Kerrest Senior Vice President and
Chief Financial Officer
2
<PAGE> 8
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "SHAMROCK BROADCASTING LICENSES OF DENVER, INC.", CHANGING ITS NAME FROM
"SHAMROCK BROADCASTING LICENSES OF DENVER, INC." TO "CHANCELLOR MEDIA/SHAMROCK
BROADCASTING LICENSES OF DENVER, INC.", FILED IN THIS OFFICE ON THE
TWENTY-FIRST DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/S/ EDWARD J. FREEL
[DELAWARE SECRETARY'S OFFICE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
2665179 8100 AUTHENTICATION: 8712938
971354111 DATE: 10-21-97
<PAGE> 9
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
Pursuant to Section 242 of the General Incorporation Law of the State of
Delaware, Shamrock Broadcasting Licenses of Denver, Inc. ("Corporation"), a
Delaware corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby amended by
deleting the present Article FIRST and inserting in lieu thereof a new
Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred to as
the "Corporation") is:
"CHANCELLOR MEDIA/SHAMROCK BROADCASTING LICENSES OF DENVER, INC."
2. The Board of Directors and Shareholders of the Corporation, by written
consent, adopted, approved and ratified the foregoing Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
SHAMROCK BROADCASTING LICENSES OF
DENVER, INC.,
a Delaware Corporation
By: /s/ Omar Choucair
-------------------------------
Name: Omar Choucair
Title: Vice President
<PAGE> 1
EXHIBIT 3.69
BYLAWS
OF
SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE: OFFICES
<S> <C> <C>
1.1 Registered Office and Agent . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 Required Vote; Withdrawal of Quorum . . . . . . . . . . . . . . . . . . . 4
2.8 Method of Voting; Proxies . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Conduct of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE THREE: DIRECTORS
3.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Number; Qualification; Election; Term . . . . . . . . . . . . . . . . . . 7
3.3 Change in Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Meetings of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 First Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Election of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
3.13 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.15 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FOUR: COMMITTEES
4.1 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Number; Qualification; Term . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Committee Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.5 Alternate Members of Committees . . . . . . . . . . . . . . . . . . . . . 11
4.6 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.7 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.8 Quorum; Majority Vote . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.11 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE FIVE: NOTICE
5.1 Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office . . . . . . . . . . . . . . . . . . . . . 13
6.2 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.5 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.7 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.8 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.9 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.10 Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.11 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.12 Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Replacement of Lost or Destroyed Certificates . . . . . . . . . . . . . . 17
7.3 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4 Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.2 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.4 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.5 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.6 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.7 Securities of Other Corporations . . . . . . . . . . . . . . . . . . . . . 19
8.8 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.9 Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.10 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.11 Mortgages, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.13 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.14 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
iii
<PAGE> 5
BYLAWS
OF
SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Shamrock Broadcasting Licenses of Denver, Inc.,
a Delaware corporation (the "Corporation"). In the event of a direct conflict
between the provisions of these bylaws and the mandatory provisions of the
Delaware General Corporation Law or the provisions of the certificate of
incorporation of the Corporation, such provisions of the Delaware General
Corporation Law or the certificate of incorporation of the Corporation, as the
case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered agent
of the Corporation shall be as designated from time to time by the appropriate
filing by the Corporation in the office of the Secretary of State of the State
of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
<PAGE> 6
2.2 Special Meetings. A special meeting of the stockholders may be called
at any time by the Chairman of the Board, the President, the board of directors,
and shall be called by the President or the Secretary at the request in writing
of the stockholders of record of not less than ten percent of all shares
entitled to vote at such meeting or as otherwise provided by the certificate of
incorporation of the Corporation. A special meeting shall be held on such date
and at such time as shall be designated by the person(s) calling the meeting
and stated in the notice of the meeting or in a duly executed waiver of notice
of such meeting. Only such business shall be transacted at a special meeting as
may be stated or indicated in the notice of such meeting or in a duly executed
waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at any
place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time of
each meeting of the stockholders and, in case of a special meeting, the purpose
or purposes for which the meeting is called shall be delivered not less than ten
nor more than 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 officer or
person(s) calling the meeting, to each stockholder of record entitled to vote at
such meeting. If such notice is to be sent by mail, it shall be directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting list. At least ten days before each meeting of stockholders, the
Secretary or other officer of the Corporation who has charge of the
Corporation's stock lodger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of ten days
prior to such meeting, such list shall be kept on file at a place within the
city where the meeting is to
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be held, which place shall be specified in the notice of meeting or a duly
executed waiver of notice of such meeting or, if not so specified, at the place
where the meeting is to be held and shall be open to examination by any
stockholder during ordinary business hours. Such list shall be produced at such
meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled to
vote on a matter, present in person or by proxy, shall constitute a quorum at
any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each 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 three years from the date of its
execution, unless otherwise provided in the
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proxy. If no date is stated in a proxy, such proxy shall be presumed to have
been executed on the date of the meeting at which it is to be voted. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders, or any adjournment
thereof, 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 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, for any such determination of stockholders, such date
in any case to be not more than 60 days and not less than ten days prior to such
meeting nor more than 60 days prior to any other action. If no record date is
fixed:
(i) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, 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
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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 in the State of
Delaware, principal place of business, or such officer or agent 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 law or these bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has been
filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these bylaws or by some person appointed by the
meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of 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, count and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
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ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors which
shall constitute the entire board of directors shall be not less than one. The
first board of directors shall consist of the number of directors named in the
certificate of incorporation of the Corporation or, if no directors are so
named, shall consist of the number of directors elected by the incorporator(s)
at an organizational meeting or by unanimous written consent in lieu thereof.
Thereafter, within the limits above specified, the number of directors which
shall constitute the entire board of directors shall be determined by resolution
of the board of directors or by resolution of the stockholders at the annual
meeting thereof or at a special meeting thereof called for that purpose. Except
as otherwise required by law, the certificate of incorporation of the
Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each director so chosen
shall hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors constituting
the entire board of directors shall have the effect of shortening the term of
any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these by-laws, at any meeting of
stockholders called expressly for that purpose, any director 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 then entitled to vote on the election of directors;
provided, however, that so long as stockholders have the right to cumulate votes
in the election of directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed, no one
of the directors may be removed 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.
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3.5 Vacancies. Vacancies and newly-created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by the sole
remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least 10% of the
total number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly-created directorships or to replace the directors chosen by
the directors then in office. Except as otherwise provided in these bylaws, 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 the 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 in these
bylaws with respect to the filling of other vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall be
held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
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3.10 Special Meetings. Special meetings of the board of directors shall be
held whenever called by the Chairman of the Board, the President, or any
director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. 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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is present at
the 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 secretary of the meeting before
the adjournment thereof or shall forward any dissent by
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certified or 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.
3.15 Compensation. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may designate
one or more directors as alternate members of any committee. Any such alternate
member may replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
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unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held without
notice at such time and place as may be designated from time to time by the
committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of the
number of members designated by the board of directors shall constitute a quorum
for the transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request of
the board of directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation of
authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed upon it or such director by law.
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ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation, or these bylaws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation, or
(b) by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or telefax). Any notice required or permitted
to be given by mail shall be deemed to be delivered and given at the time when
the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation shall
be a President, a Secretary, and such other officers as the board of directors
may from time to time elect or appoint, including a Chairman of the Board, one
or more Vice Presidents (with each Vice President to have such descriptive
title, if any, as the board of directors shall determine), and a Treasurer. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified, until his death, or until he shall resign or shall have
been removed in the manner hereinafter provided. Any two or more offices may be
held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware.
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6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such duties
in the management of the Corporation as are provided in these bylaws or as may
be determined by resolution of the board of directors not inconsistent with
these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the board of directors; provided, however, that
the board of directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President shall be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the Board
or that the Chairman of the Board is absent or unable to act.
6.8. Vice Presidents. Each Vice President shall have such powers and duties
as may be assigned to him by the board of directors, the Chairman of the Board,
or the President, and (in order of their seniority as determined by the board of
directors or, in the absence of such determination, as determined by the length
of time they have held the office of Vice President) shall exercise the powers
of the President during that officer's absence or inability to act. As
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between the Corporation and third parties, 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.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's funds
and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President. The Assistant Treasurers (in the order of their
seniority as determined by the board of directors or, in the absence of such a
determination, as determined by the length of time they have held the office of
Assistant Treasurer) shall exercise the powers of the Treasurer during that
officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the Secretary
shall keep the minutes of all meetings of the board of directors and of the
stockholders in books provided for that purpose, and he shall attend to the
giving and service of all notices. He may sign with the Chairman of the Board or
the President, in the name of the Corporation, all contracts of the Corporation
and affix the seal of the Corporation thereto. He may sign with the Chairman of
the Board or the President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the board of directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all
duties incident to the office of the Secretary, subject to the control of the
board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President. The Assistant Secretaries (in the order of their
seniority as determined by the board of directors or, in the absence of such a
determination, as determined by the length of time they have held the office of
Assistant Secretary) shall exercise the powers of the Secretary during that
officer's absence or inability to act.
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ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate 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. The 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.
7.2 Replacement of Lost or Destroyed Certificates. The board of directors
may direct a new certificate or certificates to be issued in place of a
certificate or certificates theretofore issued by the Corporation and alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or certificates representing shares 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 with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 or shares on the
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<PAGE> 19
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority to
provide that certificates representing shares of stock bear such legends as the
board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of funds
of the Corporation legally available therefor such reserve or reserves as the
directors from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends, or to repair or maintain any property of
the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
board of directors; provided, that if such fiscal year is not fixed by the board
of directors and the selection of the fiscal year is not expressly deferred by
the board of directors, the fiscal year shall be the calendar year.
15
<PAGE> 20
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign by
so stating at any meeting of the board of directors or by giving written notice
to the board of directors, the Chairman of the Board, the President, or the
Secretary. Such resignation shall take effect at the time specified therein or,
if no time is specified therein, immediately upon its receipt. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or through a
proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting of
the stockholders, 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 (acting for themselves or
through a proxy) 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 the holders of all shares entitled to vote thereon were present and voted
and shall be 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. Every written consent of stockholders
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 days of the earliest dated
16
<PAGE> 21
consent delivered in the manner required by this Section 8.9(a) to the
Corporation, written consents signed by a sufficient number of holders to take
action are 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, principal place of business, or such officer or agent shall be by hand
or by certified or registered mail, return receipt requested.
(b) Unless otherwise restricted by the certificate of incorporation of the
Corporation or by these bylaws, any action required or permitted to be taken at
a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage, or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
17
<PAGE> 22
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the stockholders or by the board of directors at any
regular meeting of the stockholders or the board of directors or at any special
meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
The undersigned, the Secretary of the Corporation, hereby certifies that
the foregoing bylaws were adopted by unanimous consent by the directors of the
Corporation as of September 20th, 1996.
/s/ STEVEN DINETZ
----------------------------
Steven Dinetz, Secretary
18
<PAGE> 1
EXHIBIT 3.70
[STATE OF TEXAS LOGO]
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF
CHANCELLOR MEDIA/SHAMROCK BROADCASTING OF TEXAS, INC.
FORMERLY:
SHAMROCK BROADCASTING OF TEXAS, INC.
The undersigned, as Secretary of State of Texas, hereby certifies that the
attached Articles of Amendment for the above named entity have been received in
this office and are found to conform to law.
ACCORDINGLY the undersigned, as Secretary of State, and by virtue of the
authority vested in the Secretary by law, hereby issues this Certificate of
Amendment.
Dated: October 20, 1997
Effective: October 20, 1997
/s/ ANTONIO O. GARZA, JR.
----------------------------------
Antonio O. Garza, Jr.
Secretary of State
[STATE OF TEXAS SEAL]
<PAGE> 2
FILED
in the Office of the
Secretary of State of Texas
OCT 20, 1997
Corporations Section
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
SHAMROCK BROADCASTING OF TEXAS, INC.
Pursuant to the provisions of Art. 4.04 of the Texas Business Corporation
Act, the undersigned corporation adopts the following Articles of Amendment to
its Articles of Incorporation:
ARTICLE ONE. The name of the corporation is Shamrock Broadcasting of
Texas, Inc.
ARTICLE TWO. The following amendments to the Articles of Incorporation was
adopted by the shareholders of the corporation on September 5, 1997:
Article One of the Articles of Incorporation is hereby amended so as
to read as follows: The name of the corporation is CHANCELLOR MEDIA/SHAMROCK
BROADCASTING OF TEXAS, INC.
ARTICLE THREE. The number of shares of the corporation outstanding at the
time of such adoption was 1,000, and the number of shares entitled to vote
thereon was 1,000.
ARTICLE FOUR. The holders of all of the shares outstanding and entitled to
vote on said amendments have signed a consent in writing adopting said
amendment.
Dated: October 17, 1997
SHAMROCK BROADCASTING OF TEXAS, INC.
By: /s/ OMAR CHOUCAIR
---------------------------------
Omar Choucair
Its Vice President
<PAGE> 1
EXHIBIT 3.71
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/SHAMROCK BROADCASTING OF TEXAS, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PREAMBLE ................................................................... 1
ARTICLE ONE: OFFICES
1.01 Registered Office and Agent............................... 1
1.02 Other Offices............................................. 1
ARTICLE TWO: SHAREHOLDERS
2.01 Annual Meetings........................................... 1
2.02 Special Meetings.......................................... 1
2.03 Place of Meetings......................................... 1
2.04 Notice.................................................... 2
2.05 Voting List............................................... 2
2.06 Voting of Shares.......................................... 2
2.07 Quorum; Withdrawal of Quorum.............................. 2
2.08 Majority Vote............................................. 3
2.09 Method of Voting; Proxies................................. 3
2.10 Closing of Transfer Records; Record Date.................. 3
2.11 Officers Duties at Meeting................................ 4
2.12 Action Without Meeting.................................... 4
ARTICLE THREE: DIRECTORS
3.01 Management................................................ 4
3.02 Number; Election; Term; Qualification..................... 4
3.03 Changes in Number......................................... 4
3.04 Removal................................................... 5
3.05 Vacancies................................................. 5
3.06 Place of Meetings......................................... 5
3.07 First Meeting............................................. 5
3.08 Regular Meetings.......................................... 5
3.09 Special Meetings; Notice.................................. 5
3.10 Quorum; Majority Vote..................................... 5
3.11 Procedure; Minutes........................................ 8
3.12 Presumption of Assent..................................... 6
3.13 Compensation.............................................. 6
3.14 Action Without Meeting.................................... 6
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE FOUR: COMMITTEES
4.01 Designation............................................... 6
4.02 Number; Qualification; Term............................... 6
4.03 Authority................................................. 6
4.04 Committee Changes......................................... 7
4.05 Regular Meetings.......................................... 7
4.06 Special Meetings.......................................... 8
4.07 Quorum; Majority Vote..................................... 8
4.08 Minutes................................................... 8
4.09 Compensation.............................................. 8
4.10 Responsibility............................................ 8
ARTICLE FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
5.01 Notice.................................................... 8
5.02 Waiver of Notice.......................................... 8
5.03 Telephone and Similar Meetings............................ 9
ARTICLE SIX: OFFICERS AND OTHER AGENTS
6.01 Number; Titles; Election; Term; Qualification............ 9
6.02 Removal................................................... 9
6.03 Vacancies................................................. 9
6.04 Authority................................................. 9
6.05 Compensation.............................................. 9
6.06 Chairman of the Board..................................... 9
6.07 President................................................. 9
6.08 Vice Presidents.......................................... 10
6.09 Treasurer................................................ 10
6.10 Assistant Treasurers..................................... 10
6.11 Secretary................................................ 10
6.12 Assistant Secretaries.................................... 11
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.01 Certificated and Uncertificated Shares................... 11
7.02 Certificates for Certificated Shares..................... 11
7.03 Issuance................................................. 11
7.04 Consideration for Shares................................. 11
7.05 Lost, Stolen, or Destroyed Certificates.................. 12
7.06 Transfer of Shares....................................... 12
7.07 Registered Shareholders.................................. 13
7.08 Legends.................................................. 13
7.09 Regulations.............................................. 13
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.01 Dividends................................................ 13
8.02 Books and Records........................................ 13
8.03 Fiscal Year.............................................. 13
8.04 Seal..................................................... 13
8.05 Attestation by the Secretary............................. 13
8.06 Resignation.............................................. 13
8.07 Securities of Other Corporations......................... 14
8.08 Amendment of Bylaws...................................... 14
8.09 Invalid Provisions....................................... 14
8.10 Headings; Table of Contents.............................. 14
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
CHANCELLOR MEDIA/SHAMROCK BROADCASTING OF TEXAS, INC.
A Texas Corporation
PREAMBLE
These bylaws are subject to, and governed by, the Texas Business
Corporation Act and the articles of incorporation of Chancellor Media/Shamrock
Broadcasting of Texas, Inc. (the "Corporation"). In the event of a direct
conflict between the provisions of these bylaws and the mandatory provisions of
the Texas Business Corporation Act or the provisions of the articles of
incorporation of the Corporation, such provisions of the Texas Business
Corporation Act or the articles of incorporation of the Corporation, as the case
may be, will be controlling.
ARTICLE ONE: OFFICES
1.01 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
Texas.
1.02 Other Offices. The Corporation may also have offices at such other
places, both within and 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 TWO: SHAREHOLDERS
2.01 Annual Meetings. An annual meeting of shareholders of the
Corporation shall be held during each calendar year on such date and at such
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, if not a legal holiday in the place where
the meeting is to be held, and, if a legal holiday in such place, then on the
next business day following, at the time specified in the notice of the meeting.
At such meeting, the shareholders shall elect directors and transact such other
business as may properly be brought before the meeting.
2.02 Special Meetings. A special meeting of the shareholders may be
called at any time by the president, the board of directors, or the holders of
not less than ten percent of all shares entitled to vote at such meeting. Only
business within the purpose or purposes described in the notice of special
meeting may be conducted at such special meeting.
2.03 Place of Meetings. The annual meeting of shareholders may be held
at any place within or without the State of Texas designated by the board of
directors. Special meetings of shareholders may be held at any place within or
without the State of Texas designated by the person or persons calling such
special meeting as provided in Section 2.02 above. Meetings of shareholders
shall be held
1
<PAGE> 6
at the principal office of the Corporation unless another place is designated
for meetings in the manner provided herein.
2.04 Notice. Except as otherwise provided by law, 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 nor more than sixty 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 share transfer records of the
corporation, with postage thereon prepaid.
2.05 Voting List. At least ten days before each meeting of
shareholders, the secretary shall prepare a complete list of shareholders
entitled to vote at such meeting, arranged in alphabetical order, including the
address of each shareholder and the number of voting shares held by each
shareholder. For a period of ten days prior to such meeting, such list shall be
kept on file at the registered office or principal place of business of the
Corporation and shall be subject to inspection by any shareholder during usual
business hours. 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. The original share transfer records shall be prima facie evidence
as to who are the shareholders entitled to examine such list or transfer records
or to vote at any meeting of shareholders.
2.06 Voting of Shares. 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 the Corporation in a fiduciary capacity shall not be shares
entitled to vote or to be counted in determining the total number of outstanding
shares. 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 authorize or, in the absence of such authorization, as
the board of directors of such corporation may determine. Shares held by an
administrator, executor, guardian, or conservator may be voted by him, either in
person or by proxy, without transfer of such shares into his name so long as
such shares form a part of the estate served by him and are in the possession of
such estate. Shares held by a trustee may be voted by him, either in person or
by proxy, only after the shares 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 transfer of such shares into his name if authority to do so is contained
in the court order by which such receiver was appointed. A shareholder whose
shares are pledged shall be entitled to vote such shares until they have been
transferred into the name of the pledgee, and thereafter, the pledgee shall be
entitled to vote such shares.
2.07 Quorum; Withdrawal of Quorum. A quorum shall be present at a
meeting of shareholders if the holders of a majority of the shares entitled to
vote are represented at the meeting in person or by proxy, except as otherwise
provided by law or the articles of incorporation. If a quorum shall not be
present at any meeting of shareholders, the shareholders represented in person
or by proxy at such meeting may adjourn the meeting until such time and to such
place as may be determined by a vote of the holders of a majority of the shares
represented in person or by proxy at that meeting. Once a quorum is present at a
meeting of shareholders, the shareholders represented in person or by proxy at
the meeting may conduct such business as may be properly brought before the
meeting until it is adjourned, and the subsequent withdrawal from the meeting of
any shareholder or the refusal of any
2
<PAGE> 7
shareholder represented in person or by proxy to vote shall not affect the
presence of a quorum at the meeting.
2.08 Majority Vote. Directors of the Corporation shall be elected by a
plurality of the votes cast by the holders of shares entitled to vote in the
election of directors of the Corporation at a meeting of shareholders at which a
quorum is present. Except as otherwise provided by law, the articles of
incorporation, or these bylaws, with respect to any matter, the affirmative vote
of the holders of a majority of the Corporation's shares entitled to vote on
that matter and represented in person or by proxy at a meeting at which a quorum
is present shall be the act of the shareholders.
2.09 Method of Voting; Proxies. Every shareholder of record shall be
entitled at every meeting of shareholders to one vote on each matter submitted
to a vote, for every share standing in his name on the original share transfer
records of the Corporation except to the extent that the voting rights of the
shares of any class or classes are increased, limited, or denied by the articles
of incorporation. Such share transfer records shall be prima facie evidence as
to the identity of shareholders entitled to vote. At any meeting of
shareholders, every shareholder having the right to vote may vote either in
person or by a proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact. Each 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 months from the date of its execution, unless otherwise
provided in the proxy. If no date is stated on a proxy, such proxy shall be
presumed to have been executed on the date of the meeting at which it is to be
voted. Each proxy shall be revocable unless the proxy form conspicuously states
that the proxy is irrevocable and the proxy is coupled with an interest.
2.10 Closing of Transfer Records; 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 a distribution
(other than a distribution involving a purchase or redemption by the Corporation
of any of its own shares) or a share dividend, or in order to make a
determination of shareholders for any other proper purpose (other than
determining shareholders entitled to consent to action by shareholders proposed
to be taken without a meeting of shareholders), the board of directors may
provide that the share transfer records of the Corporation shall be closed for a
stated period but not to exceed in any event sixty days. If the share transfer
records are closed for the purpose of determining shareholders entitled to
notice of, or to vote at, a meeting of shareholders, such records shall be
closed for at least ten days immediately preceding such meeting. In lieu of
closing the share transfer records, 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 days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which the particular
action requiring such determination of shareholders is to be taken. If the share
transfer records are not closed and if no record date is fixed for the
determination of shareholders entitled to notice of, or to vote at, a meeting of
shareholders or entitled to receive a distribution (other than a distribution
involving a purchase or redemption by the Corporation of any of its own shares)
or a share dividend, the date on which the notice of the meeting is mailed or
the date on which the resolution of the board of directors declaring such
distribution or share 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 2.10, such determination shall apply to any adjournment
thereof except where the determination has been made through the closing of the
share transfer records and the stated period of closing has expired.
3
<PAGE> 8
2.11 Officers Duties at Meetings. The president shall preside at, and
the secretary shall prepare minutes of, each meeting of shareholders, and in the
absence of either such officer, his duties shall be performed by some person or
persons elected by the vote of the holders of a majority of the outstanding
shares entitled to vote, present in person or represented by proxy.
2.12 Action Without Meeting. Any action which may be taken, or which is
required by law or the articles of incorporation or bylaws of the Corporation to
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 action so taken, shall have been 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. The signed consent or
consents of shareholders shall be placed in the minute books of the Corporation.
The record date for the purpose of determining shareholders entitled to consent
to any action pursuant to this Section 2.12 shall be determined in accordance
with Article 2.26.C of the Texas Business Corporation Act.
ARTICLE THREE: DIRECTORS
3.01 Management. The powers of the Corporation shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the board of directors.
3.02 Number; Election; Term; Qualification. The number of directors
which shall constitute the board of directors shall be not less than one. The
first board of directors shall consist of the number of directors named in the
articles of incorporation. Thereafter, the number of directors which shall
constitute the entire board of directors shall be determined by resolution of
the board of directors at any meeting thereof or by the shareholders at any
meeting thereof, but shall never be less than one. At each annual meeting of
shareholders, directors shall be elected to hold office until the next annual
meeting of shareholders and until their successors are elected and qualified. No
director need be a shareholder, a resident of the State of Texas, or a citizen
of the United States.
3.03 Changes in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director. Any directorship to be filled by reason of
an increase in the number of directors may be filled by (i) the shareholders at
any annual or special meeting of shareholders called for that purpose or (ii)
the board of directors for a term of office continuing only until the next
election of one or more directors by the shareholders; provided that the board
of directors may not fill more than two such directorships during the period
between any two successive annual meetings of shareholders. Notwithstanding the
foregoing, whenever the holders of any class or series of shares are entitled to
elect one or more directors by the provisions of the articles of incorporation,
any newly created directorship(s) of such class or series to be filled by reason
of an increase in the number of such directors may be filled by the affirmative
vote of a majority of the directors elected by such class or series then in
office or by a sole remaining director so elected or by the vote of the holders
of the outstanding shares of such class or series, and such directorship(s)
shall not in any case be filled by the vote of the remaining directors or by the
holders of the outstanding shares of the Corporation as a whole unless otherwise
provided in the articles of incorporation.
4
<PAGE> 9
3.04 Removal. At any meeting of shareholders called expressly for that
purpose, any director 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 then
entitled to vote on the election of directors. Notwithstanding the foregoing,
whenever the holders of any class or series of shares are entitled to elect one
or more directors by the provisions of the articles of incorporation, only the
holders of shares of that class or series shall be entitled to vote for or
against the removal of any director elected by the holders of shares of that
class or series.
3.05 Vacancies. Any vacancy occurring in the board of directors may be
filled by (i) the shareholders at any annual or special meeting of shareholders
called for that purpose or (ii) 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 to serve for the unexpired
term of his predecessor in office. Notwithstanding the foregoing, whenever the
holders of any class or series of shares are entitled to elect one or more
directors by the provisions of the articles of incorporation, any vacancies in
such directorship(s) may be filled by the affirmative vote of a majority of the
directors elected by such class or series then in office or by a sole remaining
director so elected or by the vote of the holders of the outstanding shares of
such class or series, and such directorship(s) shall not in any case be filled
by the vote of the remaining directors or the holders of the outstanding shares
of the Corporation as a whole unless otherwise provided in the articles of
incorporation.
3.06 Place of Meetings. The board of directors may hold its meetings in
such place or places within or without the State of Texas as the board of
directors may from time to time determine.
3.07 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 shareholders, and notice of such meeting shall not be necessary.
3.08 Regular Meetings. Regular meetings of the board of directors may
be held without notice at such times and places as may be designated from time
to time by resolution of the board of directors and communicated to all
directors.
3.09 Special Meetings; Notice. Special meetings of the board of
directors shall be held whenever called by the president or by any director. The
person calling any special meeting shall cause notice of such special meeting,
including therein the time and place of such special meeting, to be given to
each director at least two days before such special meeting. Neither the
business to be transacted at, nor the purpose of, any special meeting of the
board of directors need be specified in the notice or waiver of notice of any
special meeting.
3.10 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the number of directors fixed in the manner provided in these
bylaws shall constitute a quorum for the transaction of business. If a quorum is
not present at a meeting, a majority of the directors present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the directors
present at a meeting at which a quorum is in attendance shall be the act of the
board of directors, unless the act of a greater number is required by law, the
articles of incorporation, or these bylaws.
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3.11 Procedure; Minutes. At meetings of the board of directors,
business shall be transacted in such order as the board of directors may
determine from time to time. The board of directors shall appoint at each
meeting a person to preside at the meeting and a person to act as secretary of
the meeting. The secretary of the meeting shall prepare minutes of the meeting
which shall be delivered to the secretary of the Corporation for placement in
the minute books of the Corporation.
3.12 Presumption of Assent. A director of the Corporation who is
present at any meeting of the board of directors at which action on any 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 secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or 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.
3.13 Compensation. Directors, in their capacity as directors, may
receive, by resolution of the board of directors, a fixed sum and expenses of
attendance, if any, for attending meetings of the board of directors or a stated
salary. No director shall be precluded from serving the Corporation in any other
capacity or receiving compensation therefor.
3.14 Action Without Meeting. Any action which may be taken, or which is
required by law, the articles of incorporation, or these bylaws to be taken, at
a meeting of the board of directors or any committee may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall have
been signed by all of the members of the board of directors or committee, as the
case may be, and such consent shall have the same force and effect, as of the
date stated therein, as a unanimous vote of such members of the board of
directors or committee, as the case may be, and may be stated as such in any
document or instrument filed with the Secretary of State of Texas or in any
certificate or other document delivered to any person. The consent may be in one
or more counterparts so long as each director or committee member signs one of
the counterparts. The signed consent shall be placed in the minute books of the
Corporation.
ARTICLE FOUR: COMMITTEES
4.01 Designation. The board of directors may, by resolution adopted by
a majority of the entire board of directors, designate one or more committees.
4.02 Number; Qualification; Term. The board of directors, by resolution
adopted by a majority of the entire board of directors, shall designate one or
more of its members as members of any committee and may designate one or more of
its members as alternate members of any committee, who may, subject to any
limitations imposed by the board of directors, replace absent or disqualified
members at any meeting of that committee. The number of committee members may be
increased or decreased from time to time by resolution adopted by a majority of
the entire board of directors. Each committee member shall serve as such until
the earliest of (i) the expiration of his term as director, (ii) his resignation
as a committee member or as a director, or (iii) his removal, as a committee
member or as a director.
4.03 Authority. Each committee, to the extent expressly provided in
the resolution establishing such committee, shall have and may exercise all of
the authority of the board of directors,
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including, without limitation, the authority to authorize a distribution and to
authorize the issuance of shares of the Corporation. Notwithstanding the
foregoing, however, no committee shall have the authority of the board of
directors in reference to:
(a) amending the articles of incorporation, except that
a committee may, to the extent provided in the
resolution designating that committee, exercise the
authority of the board of directors vested in it in
accordance with Article 2.13 of the Texas Business
Corporation Act;
(b) proposing a reduction of the stated capital of the
Corporation in the manner permitted by Article 4.12
of the Texas Business Corporation Act;
(c) approving a plan of merger, share exchange or
conversion of the Corporation;
(d) recommending to the shareholders the sale, lease,
or exchange of all or substantially all of the
property and assets of the Corporation otherwise
than in the usual and regular course of its
business;
(e) recommending to the shareholders a voluntary
dissolution of the Corporation or a revocation
thereof;
(f) amending, altering, or repealing these bylaws or
adopting new bylaws of the Corporation;
(g) filling vacancies in the board of directors;
(h) filling vacancies in, or designating alternate
members of, any committee;
(i) filling any directorship to be filled by reason of
an increase in the number of directors;
(j) electing or removing officers of the Corporation or
members or alternate members of any committee;
(k) fixing the compensation of any member or alternate
member of any committee; or
(l) altering or repealing any resolution of the board
of directors that by its terms provides that it
shall not be amendable or repealable.
4.04 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.05 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
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4.06 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.07 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the articles of incorporation, or
these bylaws.
4.08 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the secretary of the Corporation for placement in the
minute books of the Corporation.
4.09 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.10 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
5.01 Notice. Whenever by law, the articles of incorporation, or these
bylaws, notice is required to be given to any committee member, director, or
shareholder and no provision is made as to how such notice shall be given, it
shall be construed to mean that any such notice may be given (a) in person, (b)
in writing, by mail, postage prepaid, addressed to such committee member,
director, or shareholder at his address as it appears on the books of the
Corporation or, in the case of a shareholder, the share transfer records of the
Corporation, or (c) by any other method permitted by law. Any notice required or
permitted to be given by mail shall be deemed to be delivered and given at the
time when the same is deposited in the United States mail, postage prepaid, and
addressed as aforesaid.
5.02 Waiver of Notice. Whenever by law, the articles of incorporation,
or these bylaws, any notice is required to be given to any committee member,
shareholder, or director of the Corporation, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time notice should have been given, shall be equivalent to the giving of such
notice. Attendance of a committee member, shareholder, or director at a meeting
shall constitute a waiver of notice of such meeting, except where such person
attends for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
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5.03 Telephone and Similar Meetings. Shareholders, directors, or
committee members may participate in and hold a meeting by means of a conference
telephone or similar communications equipment by means of which persons
participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at 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 SIX: OFFICERS AND OTHER AGENTS
6.01 Number; Titles; Election; Term; Qualification. The officers of the
Corporation shall be a president, one or more vice presidents (and, in the case
of each vice president, with such descriptive title, if any, as the board of
directors shall determine), a secretary, and a treasurer. The Corporation may
also have a chairman of the board, one or more assistant treasurers, one or more
assistant secretaries, and such other officers and such agents as the board of
directors may from time to time elect or appoint. The board of directors shall
elect a president, vice president, treasurer, and secretary at its first meeting
at which a quorum shall be present after the annual meeting of shareholders or
whenever a vacancy exists. The board of directors then, or from time to time,
may also elect or appoint one or more other officers or agents as it shall deem
advisable. Each officer and agent shall hold office for the term for which he is
elected or appointed and until his successor has been elected or appointed and
qualified. Any person may hold any number of offices. No officer or agent need
be a shareholder, a director, a resident of the State of Texas, or a citizen of
the United States.
6.02 Removal. Any officer, agent or member of a committee elected or
appointed by the board of directors may be removed by the board of directors
whenever in its judgment the best interest 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, agent or
member of a committee shall not of itself create contract rights.
6.03 Vacancies. Any vacancy occurring in any office of the Corporation
may be filled by the board of directors.
6.04 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.05 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, that the
board of directors may by resolution delegate to any one or more officers of the
Corporation the authority to fix such compensation.
6.06 Chairman of the Board. The chairman of the board shall have such
powers and duties as may be prescribed by the board of directors.
6.07 President. Unless and to the extent that such powers and duties
are expressly delegated to a chairman of the board by the board of directors,
the president shall be the chief executive officer of the Corporation and,
subject to the supervision of the board of directors, shall have general
management and control of the business and property of the Corporation in the
ordinary course of its business with all such powers with respect to such
general management and control as may be
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reasonably incident to such responsibilities, including, but not limited to, the
power to employ, discharge, or suspend employees and agents of the Corporation,
to fix the compensation of employees and agents, and to suspend, with or without
cause, any officer of the Corporation pending final action by the board of
directors with respect to continued suspension, removal, or reinstatement of
such officer. The president may, without limitation, agree upon and execute all
division and transfer orders, bonds, contracts, and other obligations in the
name of the Corporation.
6.08 Vice Presidents. Each vice president shall have such powers and
duties as may be prescribed by the board of directors or as may be delegated
from time to time by the president and (in the order as designated by the board
of directors, or in the absence of such designation, as determined by the length
of time each has held the office of vice president continuously) shall exercise
the powers of the president during that officer's absence or inability to act.
As between the Corporation and third parties, 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.
6.09 Treasurer. The treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate accounts of receipts and
disbursements, and shall deposit all moneys and valuable effects in the name and
to the credit of the Corporation in such depository or depositories as may be
designated by the board of directors. The treasurer shall audit all payrolls and
vouchers of the Corporation, receive, audit, and consolidate all operating and
financial statements of the Corporation and its various departments, shall
supervise the accounting and auditing practices of the Corporation, and shall
have charge of matters relating to taxation. Additionally, the treasurer shall
have the power to endorse for deposit, collection, or otherwise all checks,
drafts, notes, bills of exchange, and other commercial paper payable to the
Corporation and to give proper receipts and discharges for all payments to the
Corporation. The treasurer shall perform such other duties as may be prescribed
by the board of directors or as may be delegated from time to time by the
president.
6.10 Assistant Treasurers. Each assistant treasurer shall have such
powers and duties as may be prescribed by the board of directors or as may be
delegated from time to time by the president. The assistant treasurers (in the
order as designated by the board of directors or, in the absence of such
designation, as determined by the length of time each has held the office of
assistant treasurer continuously) shall exercise the powers of the treasurer
during that officer's absence or inability to act.
As between the Corporation and third parties, any action taken by an assistant
treasurer in the performance of the duties of the treasurer shall be conclusive
evidence of the absence or inability to act of the treasurer at the time such
action was taken.
6.11 Secretary. The secretary shall maintain minutes of all meetings of
the board of directors, of any committee, and of the shareholders or consents in
lieu of such minutes in the Corporation's minute books, and shall cause notice
of such meetings to be given when requested by any person authorized to call
such meetings. The secretary may sign with the president, in the name of the
Corporation, all contracts of the Corporation and affix the seal of the
Corporation thereto. The secretary shall have charge of the certificate books,
share transfer records, stock ledgers, and such other stock books and papers as
the board of directors may direct, all of which shall at all reasonable times be
open to inspection by any director at the office of the Corporation during
business hours. The secretary shall perform such other duties as may be
prescribed by the board of directors or as may be delegated from time to time by
the president.
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6.12 Assistant Secretaries. Each assistant secretary shall have such
powers and duties as may be prescribed by the board of directors or as may be
delegated from time to time by the president. The assistant secretaries (in the
order designated by the board of directors or, in the absence of such
designation, as determined by the length of time each has held the office of
assistant secretary continuously) shall exercise the powers of the secretary
during that officer's absence or inability to act. As between the Corporation
and third parties, any action taken by an assistant secretary in the performance
of the duties of the secretary shall be conclusive evidence of the absence or
inability to act of the secretary at the time such action was taken.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.01 Certificated and Uncertificated Shares. The shares of the
Corporation may be either certificated shares or uncertificated shares. As used
herein, the term "certificated shares" means shares represented by instruments
in bearer or registered form, and the term "uncertificated shares" means shares
not represented by instruments and the transfers of which are registered upon
books maintained for that purpose by or on behalf of the Corporation.
7.02 Certificates for Certificated Shares. The certificates
representing certificated shares of stock of the Corporation shall be in such
form as shall be approved by the board of directors in conformity with law. The
certificates shall be consecutively numbered, shall be entered as they are
issued in the books of the Corporation or in the records of the Corporation's
designated transfer agent, if any, and shall state upon the face thereof: (a)
that the Corporation is organized under the laws of the State of Texas; (b) the
name of the person to whom issued; (c) the number and class of shares and the
designation of the series, if any, which such certificate represents; (d) the
par value of each share represented by such certificate, or a statement that the
shares are without par value; and (e) such other matters as may be required by
law. The certificates shall be signed by the president or any vice president and
also by the secretary, an assistant secretary, or any other officer; however,
the signatures of any of such officers may be facsimiles. The certificates may
be sealed with the seal of the Corporation or a facsimile thereof.
7.03 Issuance. Shares with or without par value may be issued for such
consideration and to such persons as the board of directors may from time to
time determine, except in the case of shares with par value the consideration
must be at least equal to the par value of such shares. Shares may not be issued
until the full amount of the consideration has been paid. After the issuance of
uncertificated shares, the Corporation or the transfer agent of the Corporation
shall send to the registered owner of such uncertificated shares a written
notice containing the information required to be stated on certificates
representing shares of stock as set forth in Section 7.02 above and such
additional information as may be required by ss.8.408 of the Texas Uniform
Commercial Code as currently in effect and as the same may be amended from time
to time hereafter.
7.04 Consideration for Shares. The consideration for the issuance of
shares shall consist of money paid, labor done (including services actually
performed for the Corporation), or property (tangible or intangible) actually
received. Neither promissory notes nor the promise of future services shall
constitute payment or part payment for the issuance of shares. In the absence of
fraud in the transaction, the judgment of the board of directors as to the value
of consideration received shall be conclusive. When consideration, fixed as
provided by law, has been paid, the shares shall be deemed to have been issued
and shall be considered fully paid and nonassessable. The consideration received
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for shares shall be allocated by the board of directors, in accordance with law,
between stated capital and surplus accounts.
7.05 Lost, Stolen, or Destroyed Certificates. The Corporation shall
issue a new certificate or certificates in place of any certificate representing
shares previously issued if the registered owner of the certificate:
(a) Claim. Makes proof by affidavit, in form and
substance satisfactory to the board of directors or
any proper officer, that a previously issued
certificate representing shares has been lost,
destroyed, or stolen;
(b) Timely Request. Requests the issuance of a new
certificate before the Corporation has notice that
the certificate has been acquired by a purchaser
for value in good faith and without notice of an
adverse claim;
(c) Bond. If required by the board of directors or any
proper officer, in its or such officer's
discretion, delivers to the Corporation a bond or
indemnity agreement in such form, with such surety
or sureties, and with such fixed or open penalty,
as the board of directors or such officer may
direct, in its or such officer's discretion, to
indemnify the Corporation (and its transfer agent
and registrar, if any) against any claim that may
be made on account of the alleged loss,
destruction, or theft of the certificate; and
(d) Other Requirements. Satisfies any other reasonable
requirements imposed by the board of directors.
7.06 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the shareholders thereof in
person or by their duly authorized attorneys or legal representatives. With
respect to certificated shares, upon surrender to the Corporation or the
transfer agent of the Corporation for transfer of a certificate representing
shares duly endorsed and accompanied by any reasonable assurances that such
endorsements are genuine and effective as the Corporation may require and after
compliance with any applicable law relating to the collection of taxes, the
Corporation or its transfer agent shall, if it has no notice of an adverse claim
or if it has discharged any duty with respect to any adverse claim, issue one or
more new certificates to the person entitled thereto, cancel the old
certificate, and record the transaction upon its books. With respect to
uncertificated shares, upon delivery to the Corporation or the transfer agent of
the Corporation of an instruction originated by an appropriate person (as
prescribed by ss.8.308 of the Texas Uniform Commercial Code as currently in
effect and as the same may be amended from time to time hereafter) and
accompanied by any reasonable assurances that such instruction is genuine and
effective as the Corporation may require and after compliance with any
applicable law relating to the collection of taxes, the Corporation or its
transfer agent shall, if it has no notice of an adverse claim or has discharged
any duty with respect to any adverse claim, record the transaction upon its
books, and shall send to the new registered owner of such uncertificated shares,
and, if the shares have been transferred subject to a registered pledge, to the
registered pledgee, a written notice containing the information required to be
stated on certificates representing shares of stock set forth in Section 7.02
above and such additional information as may be required by ss.8.408 of the
Texas Uniform Commercial Code as currently in effect and as the same may be
amended from time to time hereafter.
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7.07 Registered Shareholders. The Corporation shall be entitled to
treat the shareholder of record as the shareholder in fact of any shares and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have actual or other notice thereof, except as otherwise provided by law.
7.08 Legends. The board of directors shall cause an appropriate legend
to be placed on certificates representing shares of stock as may be deemed
necessary or desirable by the board of directors in order for the Corporation to
comply with applicable federal or state securities or other laws.
7.09 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, registration, or replacement of certificates
representing shares of stock of the Corporation.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.01 Dividends. Subject to provisions of applicable statutes and the
articles of incorporation, dividends may be declared by and at the discretion of
the board of directors at any meeting and may be paid in cash, in property, or
in shares of stock of the Corporation.
8.02 Books and Records. The Corporation shall keep books and records of
account and shall keep minutes of the proceedings of its shareholders, the board
of directors, and each committee of the board of directors. 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 the original issuance of
shares issued by the Corporation and a record of each transfer of those shares
that have been presented to the Corporation for registration of transfer, giving
the names and addresses of all past and current shareholders and the number and
class of the shares held by each of such shareholders.
8.03 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the board of directors does not defer its determination
of the fiscal year, the fiscal year shall be the calendar year.
8.04 Seal. The seal, if any, of the Corporation shall be in such form
as may be approved from time to time by the board of directors. If the board of
directors approves a seal, the affixation of such seal shall not be required to
create a valid and binding obligation against the Corporation.
8.05 Attestation by the Secretary. With respect to any deed, deed of
trust, mortgage, or other instrument executed by the Corporation through its
duly authorized officer or officers, the attestation to such execution by the
secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.06 Resignation. Any director, committee member, officer, or agent may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the president, or the secretary. Such
resignation shall take effect at the time specified in the statement made at the
board of directors' meeting or in the written notice, but in no event may the
effective time of such resignation be prior to the time such statement is made
or such notice is given. If no effective
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time is specified in the resignation, the resignation shall be effective
immediately. Unless a resignation specifies otherwise, it shall be effective
without being accepted.
8.07 Securities of Other Corporations. The president or any vice
president of the Corporation shall have the 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.
8.08 Amendment of Bylaws. The power to amend or repeal these bylaws or
to adopt new bylaws is vested in the board of directors, but is subject to the
right of the shareholders to amend or repeal these bylaws or to adopt new
bylaws.
8.09 Invalid Provisions. If any part of these bylaws is held invalid or
inoperative for any reason, the remaining parts, so far as is possible and
reasonable, shall remain valid and operative.
8.10 Headings; Table of Contents. The headings and table of contents
used in these bylaws are for convenience only and do not constitute matter to be
construed in the interpretation of these bylaws.
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<PAGE> 1
EXHIBIT 3.72
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF LIMITED
LIABILITY COMPANY OF "CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES LLC", FILED IN
THIS OFFICE ON THE THIRTIETH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
/s/ Edward J. Freel
[STATE OF DELAWARE SEAL] ----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9231876
DATE: 08-03-98
<PAGE> 2
CERTIFICATE OF FORMATION
OF
CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, LLC
The undersigned, an authorized natural person, for the purpose of
forming a limited liability company, under the provisions and subject to the
requirements of the State of Delaware (particularly Chapter 18, Title 6 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "Delaware Limited Liability Company
Act"), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called
the "limited liability company") is:
Chancellor Media/Shamrock Radio Licenses, LLC
SECOND: The address of the registered office and the name and the
address of the registered agent of the limited liability company required to be
maintained by Section 18-104 of the Delaware Limited Liability Company Act are:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
Executed on July 30, 1998
/s/ Jane C. Serena
----------------------------
Jane C. Serena
Authorized Person
<PAGE> 3
LIMITED LIABILITY COMPANY AGREEMENT
OF
CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, LLC
A Delaware Limited Liability Company
<PAGE> 4
LIMITED LIABILITY COMPANY AGREEMENT
OF
CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of
CHANCELLOR MEDIA/SHAMROCK RADIO LICENSES, LLC (the "Company") is effective as
of July 30, 1998.
1. Formation of Limited Liability Company. Chancellor Media/Shamrock
Broadcasting, Inc. (the "Member") hereby forms the Company as a limited
liability company pursuant to the provisions of the Delaware Limited Liability
Company Act, 6 Del. C sections.18-101, et seq., as it may be amended from time
to time, and any successor to such statute (the "Act"). The rights and
obligations of the Member and the administration and termination of the Company
shall be governed by the Agreement and the Act. The Agreement shall be
considered the "Limited Liability Company Agreement" of the Company within the
meaning of Section 18-101(7) of the Act. To the extent this Agreement is
inconsistent in any respect with the Act, this Agreement shall control.
2. Members. Chancellor Media/Shamrock Broadcasting, Inc. is the
sole member of the Company.
3. Purpose. The purpose of the Company is to engage in any and all
other lawful businesses or activities in which a limited liability company may
be engaged under applicable law (including, without limitation, the Act).
4. Name. The name of the Company shall be "CHANCELLOR MEDIA/SHAMROCK
RADIO LICENSES, LLC".
5. Registered Agent and Principal Office. The registered office and
registered agent of the Company in the State of Delaware shall be as the Member
may designate from time to time. The Company may have such other offices as the
Member may designate from time to time. The mailing address of the Company shall
be c/o Chancellor Media Corporation, 300 Crescent Court, Suite 600, Dallas,
Texas 75201.
6. Term of Company. The Company shall commence on the date a
Certificate of Formation (the "Certificate") first is properly filed with the
Secretary of State of the State of Delaware and shall continue in existence in
perpetuity unless its business and affairs are earlier wound up following
dissolution at such time as this Agreement may specify.
7. Management of Company. All decisions relating to the business,
affairs and properties of the Company shall be made by the Member. The Member
may appoint a Chairman, a President and one or more Executive Vice Presidents
and such other officers of the Company as the Member may deem necessary or
advisable to manage the day-to-day business affairs of the Company (the
"Officers"). To the extent delegated by the Member, the Officers shall have the
authority to act on behalf of, bind and execute and deliver documents in the
name
<PAGE> 5
and on behalf of the Company. No such delegation shall cause the Member to cease
to be a Member. The initial Officers of the Company are set forth on Schedule A
hereto.
8. Distributions. Each distribution of cash or other property by the
Company shall be made 100% to the Member. Each item of income, gain, loss,
deduction and credit of the Company shall be allocated 100% to the Member.
9. Capital Accounts. A capital account shall be maintained for each
Member in accordance with Treasury Regulations Section 1.704-1 (b)(2)(iv).
10. Dissolution and Winding Up. The Company shall dissolve and its
business and affairs shall be wound up upon the written consent of the Member.
11. Amendments. This Agreement may be amended or modified from time
to time only by a written instrument executed by the Member.
12. Governing Law. The validity and enforceability of this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to otherwise governing principles of conflicts of law.
Chancellor Media/Shamrock Broadcasting, Inc.
By: /s/ Illegible Signature
------------------------------------------
Name:.
Title:
<PAGE> 6
SCHEDULE A
OFFICERS
NAME TITLE
Jeffrey A. Marcus President and Chief Executive Officer
Matthew E. Devine Vice President, Chief Financial Officer and
Treasurer
James E. de Castro Vice President
Omar Choucair Vice President and Assistant Secretary
Andrea Hulcy Vice President and Assistant Secretary
Kenneth J. O'Keefe Vice President
Eric C. Neuman Vice President
<PAGE> 1
EXHIBIT 3.73
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA OUTDOOR CORPORATION", FILED IN THIS OFFICE ON
THE TWENTY-SECOND DAY OF JULY, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[STATE OF DELAWARE SEAL] ----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9211684
DATE: 07-22-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA OUTDOOR CORPORATION
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Chancellor Media Outdoor Corporation
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors of
the Corporation may, in its sole discretion, offer such shares or securities, or
any part thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 22nd day of July, 1998.
/s/ Nancy J. Mellady
----------------------------------------
Nancy J. Mellady
Incorporator
<PAGE> 1
EXHIBIT 3.74
BY-LAWS
OF
CHANCELLOR MEDIA OUTDOOR CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. OFFICES ......................................................... 1
Section 1. Registered Office .......................................... 1
Section 2. Other Offices .............................................. 1
ARTICLE II. MEETINGS OF STOCKHOLDERS ...................................... 1
Section 1. Place of Meetings .......................................... 1
Section 2. Annual Meeting of Stockholders ............................. 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof .............. 1
Section 4. Voting ..................................................... 2
Section 5. Proxies .................................................... 2
Section 6. Special Meetings ........................................... 2
Section 7. Notice of Stockholders' Meetings ........................... 3
Section 8. Maintenance and Inspection of Stockholder List ............. 3
Section 9. Stockholder Action by Written Consent Without a Meeting .... 4
Article III. DIRECTORS ..................................................... 4
Section 1. The Number of Directors .................................... 4
Section 2. Vacancies .................................................. 5
Section 3. Powers ..................................................... 5
Section 4. Place of Directors' Meetings ............................... 6
Section 5. Regular Meetings ........................................... 6
Section 6. Special Meetings ........................................... 6
Section 7. Quorum ..................................................... 6
Section 8. Action Without Meeting ..................................... 6
Section 9. Telephonic Meetings ........................................ 7
Section 10. Committees of Directors ................................... 7
Section 11. Minutes of Committee Meetings ............................. 8
Section 12. Compensation of Directors ................................. 8
Section 13. Indemnification ........................................... 8
ARTICLE IV. OFFICERS ....................................................... 9
Section 1. Officers ................................................... 9
Section 2. Election of Officers ....................................... 9
Section 3. Subordinate Officers ....................................... 9
Section 4. Compensation of Officers ................................... 9
Section 5. Term of Office; Removal and Vacancies ...................... 9
Section 6. Chairman of the Board ...................................... 10
Section 7. President .................................................. 10
Section 8. Vice Presidents ............................................ 10
Section 9. Secretary .................................................. 11
Section 10. Assistant Secretary ....................................... 11
Section 11. Treasurer ................................................. 11
Section 12. Assistant Treasurer ....................................... 12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V. CERTIFICATES OF STOCK .......................................... 12
Section 1. Certificates .............................................. 12
Section 2. Signatures on Certificates ................................ 13
Section 3. Statement of Stock Rights, Preferences, Privileges ........ 13
Section 4. Lost Certificates ......................................... 13
Section 5. Transfers of Stock ........................................ 14
Section 6. Fixing Record Date ........................................ 14
Section 7. Registered Stockholders ................................... 14
ARTICLE VI. GENERAL PROVISIONS ............................................. 15
Section 1. Dividends ................................................. 15
Section 2. Payment of Dividends; Directors' Duties ................... 15
Section 3. Checks .................................................... 15
Section 4. Fiscal Year ............................................... 15
Section 5. Corporate Seal ............................................ 15
Section 6. Manner of Giving Notice.................................... 16
Section 7. Waiver of Notice .......................................... 16
Section 8. Annual Statement .......................................... 16
ARTICLE VII. AMENDMENTS .................................................... 16
Section 1. Amendment By Directors or Stockholders .................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 7
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III.
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 8
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 10
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 11
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 13
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 14
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
11
<PAGE> 15
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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 16
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 17
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 18
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 19
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
16
<PAGE> 20
meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 21
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and acting Assistant Secretary of Chancellor
Media Outdoor Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
July 22, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 22nd day of
July, 1998.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Assistant Secretary
18
<PAGE> 1
EXHIBIT 3.75
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA NEVADA SIGN CORPORATION", FILED IN THIS
OFFICE ON THE SIXTH DAY OF AUGUST, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2930296 8100 AUTHENTICATION: 9239512
981308474 DATE: 08-06-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA NEVADA SIGN CORPORATION
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Chancellor Media Nevada Sign Corporation
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors
of the Corporation may, in its sole discretion, offer such shares or
securities, or any part thereof, for purchase or subscription by the holders of
shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 6th day of August, 1998.
/s/ Nancy J. Mellady
------------------------------------
Nancy J. Mellady
Incorporator
<PAGE> 1
EXHIBIT 3.76
BY-LAWS
OF
CHANCELLOR MEDIA NEVADA SIGN CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. OFFICES ......................................................... 1
Section 1. Registered Office .......................................... 1
Section 2. Other Offices .............................................. 1
ARTICLE II. MEETINGS OF STOCKHOLDERS ...................................... 1
Section 1. Place of Meetings .......................................... 1
Section 2. Annual Meeting of Stockholders
Section 3. Quorum; Adjourned Meetings and Notice Thereof .............. 1
Section 4. Voting ..................................................... 2
Section 5. Proxies .................................................... 2
Section 6. Special Meetings ........................................... 2
Section 7. Notice of Stockholders' Meetings ........................... 3
Section 8. Maintenance and Inspection of Stockholder List ............. 3
Section 9. Stockholder Action by Written Consent Without a Meeting .... 4
Article III. DIRECTORS ..................................................... 4
Section 1. The Number of Directors .................................... 4
Section 2. Vacancies .................................................. 5
Section 3. Powers ..................................................... 5
Section 4. Place of Directors' Meetings ............................... 6
Section 5. Regular Meetings ........................................... 6
Section 6. Special Meetings ........................................... 6
Section 7. Quorum ..................................................... 6
Section 8. Action Without Meeting ..................................... 6
Section 9. Telephonic Meetings ........................................ 7
Section 10. Committees of Directors ................................... 7
Section 11. Minutes of Committee Meetings ............................. 8
Section 12. Compensation of Directors ................................. 8
Section 13. Indemnification ........................................... 8
ARTICLE IV. OFFICERS ....................................................... 9
Section 1. Officers ................................................... 9
Section 2. Election of Officers ....................................... 9
Section 3. Subordinate Officers ....................................... 9
Section 4. Compensation of Officers ................................... 9
Section 5. Term of Office; Removal and Vacancies ...................... 9
Section 6. Chairman of the Board ...................................... 10
Section 7. President .................................................. 10
Section 8. Vice Presidents ............................................ 10
Section 9. Secretary .................................................. 11
Section 10. Assistant Secretary ....................................... 11
Section 11. Treasurer ................................................. 11
Section 12. Assistant Treasurer ....................................... 12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V. CERTIFICATES OF STOCK ........................................... 12
Section 1. Certificates .............................................. 12
Section 2. Signatures on Certificates ................................ 13
Section 3. Statement of Stock Rights, Preferences, Privileges ........ 13
Section 4. Lost Certificates ......................................... 13
Section 5. Transfers of Stock ........................................ 14
Section 6. Fixing Record Date ........................................ 14
Section 7. Registered Stockholders ................................... 14
ARTICLE VI. GENERAL PROVISIONS ............................................. 15
Section 1. Dividends ................................................. 15
Section 2. Payment of Dividends; Directors' Duties ................... 15
Section 3. Checks .................................................... 15
Section 4. Fiscal Year ............................................... 15
Section 5. Corporate Seal ............................................ 15
Section 6. Manner of Giving Notice ................................... 16
Section 7. Waiver of Notice .......................................... 16
Section 8. Annual Statement .......................................... 16
ARTICLE VII. AMENDMENTS .................................................... 16
Section 1. Amendment By Directors or Stockholders .................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 7
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III.
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each
director elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 8
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 10
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 11
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 13
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 14
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
11
<PAGE> 15
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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by; or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 16
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 17
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 18
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends, Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 19
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
16
<PAGE> 20
meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 21
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and acting Assistant Secretary of Chancellor
Media Nevada Sign Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
August 7, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 7th day of
August, 1998.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Assistant Secretary
18
<PAGE> 1
Exhibit 3.77
Page 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA MW SIGN CORPORATION", FILED IN THIS OFFICE ON
THE SIXTH DAY OF AUGUST, A.D. 1998, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
--------------------------------------
Edward J. Freel, Secretary of State
[Secretary's Office
State Seal]
2930292 8100 AUTHENTICATION: 9239509
DATE: 08-06-98
981308465
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA MW SIGN CORPORATION
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Chancellor Media MW Sign Corporation
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors of
the Corporation may, in its sole discretion, offer such shares or securities, or
any part thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 6th day of August, 1998.
/s/ Nancy J. Mellady
---------------------------
Nancy J. Mellady
Incorporator
<PAGE> 1
EXHIBIT 3.78
BY-LAWS
OF
CHANCELLOR MEDIA MW SIGN CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. OFFICES ......................................................... 1
Section 1. Registered Office .......................................... 1
Section 2. Other Offices .............................................. 1
ARTICLE II. MEETINGS OF STOCKHOLDERS ...................................... 1
Section 1. Place of Meetings .......................................... 1
Section 2. Annual Meeting of Stockholders.............................. 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof .............. 1
Section 4. Voting ..................................................... 2
Section 5. Proxies .................................................... 2
Section 6. Special Meetings ........................................... 2
Section 7. Notice of Stockholders' Meetings ........................... 3
Section 8. Maintenance and Inspection of Stockholder List ............. 3
Section 9. Stockholder Action by Written Consent Without a Meeting .... 4
Article III. DIRECTORS ..................................................... 4
Section 1. The Number of Directors .................................... 4
Section 2. Vacancies .................................................. 5
Section 3. Powers ..................................................... 5
Section 4. Place of Directors' Meetings ............................... 6
Section 5. Regular Meetings ........................................... 6
Section 6. Special Meetings ........................................... 6
Section 7. Quorum ..................................................... 6
Section 8. Action Without Meeting ..................................... 6
Section 9. Telephonic Meetings ........................................ 7
Section 10. Committees of Directors ................................... 7
Section 11. Minutes of Committee Meetings ............................. 8
Section 12. Compensation of Directors ................................. 8
Section 13. Indemnification ........................................... 8
ARTICLE IV. OFFICERS ....................................................... 9
Section 1. Officers ................................................... 9
Section 2. Election of Officers ....................................... 9
Section 3. Subordinate Officers ....................................... 9
Section 4. Compensation of Officers ................................... 9
Section 5. Term of Office; Removal and Vacancies ...................... 9
Section 6. Chairman of the Board ...................................... 10
Section 7. President .................................................. 10
Section 8. Vice Presidents ............................................ 10
Section 9. Secretary .................................................. 11
Section 10. Assistant Secretary ....................................... 11
Section 11. Treasurer ................................................. 11
Section 12. Assistant Treasurer ....................................... 12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V. CERTIFICATES OF STOCK ........................................... 12
Section 1. Certificates .............................................. 12
Section 2. Signatures on Certificates ................................ 13
Section 3. Statement of Stock Rights, Preferences, Privileges ........ 13
Section 4. Lost Certificates ......................................... 13
Section 5. Transfers of Stock ........................................ 14
Section 6. Fixing Record Date ........................................ 14
Section 7. Registered Stockholders ................................... 14
ARTICLE VI. GENERAL PROVISIONS ............................................. 15
Section 1. Dividends ................................................. 15
Section 2. Payment of Dividends; Directors' Duties ................... 15
Section 3. Checks .................................................... 15
Section 4. Fiscal Year ............................................... 15
Section 5. Corporate Seal ............................................ 15
Section 6. Manner of Giving Notice .................................. 16
Section 7. Waiver of Notice .......................................... 16
Section 8. Annual Statement .......................................... 16
ARTICLE VII. AMENDMENTS .................................................... 16
Section 1. Amendment By Directors or Stockholders .................... 16
</TABLE>
ii
<PAGE> 4
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
haven the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,-
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
3
<PAGE> 7
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III.
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 8
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
5
<PAGE> 9
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
6
<PAGE> 10
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
7
<PAGE> 11
and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
8
<PAGE> 12
ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
9
<PAGE> 13
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
10
<PAGE> 14
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
11
<PAGE> 15
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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
12
<PAGE> 16
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
13
<PAGE> 17
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 18
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 19
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
16
<PAGE> 20
meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 21
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and acting Assistant Secretary of Chancellor
Media MW Sign Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
August 7, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 7th day of
August, 1998.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Assistant Secretary
18
<PAGE> 1
EXHIBIT 3.79
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA MARTIN CORPORATION", FILED IN THIS OFFICE ON
THE TWENTY-THIRD DAY OF JULY, A.D. 1998, AT 11 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2924224 8100 AUTHENTICATION: 9212661
981286061 DATE: 07-23-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA MARTIN CORPORATION
FIRST. The name of the corporation (hereinafter sometimes
referred to as the "Corporation") is:
Chancellor Media Martin Corporation
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, New Castle County, Wilmington,
Delaware 19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one thousand (1000) shares of
common stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any share of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time or from time to time
be issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors of
the Corporation may, in its sole discretion, offer such shares or securities, or
any part thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation
shall be entitled to one vote for each share of common stock held by such
stockholder standing in the name of such stockholder on the books of the
Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Jane C. Serena
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provisions contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by the law of the State of Delaware.
All rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 23rd day of July, 1998.
/s/ Jane C. Serena
-------------------------------
Jane C. Serena
Incorporator
<PAGE> 1
EXHIBIT 3.80
BY-LAWS
OF
CHANCELLOR MEDIA MARTIN CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. OFFICES ......................................................................1
Section 1. Registered Office ...........................................................1
Section 2. Other Offices ...............................................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS ....................................................1
Section 1. Place of Meetings ...........................................................1
Section 2. Annual Meeting of Stockholders ..............................................1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ...............................1
Section 4. Voting ......................................................................2
Section 5. Proxies .....................................................................2
Section 6. Special Meetings ............................................................2
Section 7. Notice of Stockholders' Meetings ............................................3
Section 8. Maintenance and Inspection of Stockholder List ..............................3
Section 9. Stockholder Action by Written Consent Without a Meeting .....................4
ARTICLE III. DIRECTORS ..................................................................4
Section 1. The Number of Directors .....................................................4
Section 2. Vacancies ...................................................................5
Section 3. Powers ......................................................................5
Section 4. Place of Directors' Meetings ................................................6
Section 5. Regular Meetings ............................................................6
Section 6. Special Meetings ............................................................6
Section 7. Quorum ......................................................................6
Section 8. Action Without Meeting ......................................................6
Section 9. Telephonic Meetings .........................................................7
Section 10. Committees of Directors ....................................................7
Section 11. Minutes of Committee Meetings ..............................................8
Section 12. Compensation of Directors ..................................................8
Section 13. Indemnification ............................................................8
ARTICLE IV. OFFICERS ....................................................................9
Section 1. Officers ....................................................................9
Section 2. Election of Officers ........................................................9
Section 3. Subordinate Officers ........................................................9
Section 4. Compensation of Officers ....................................................9
Section 5. Term of Office; Removal and Vacancies .......................................9
Section 6. Chairman of the Board ......................................................10
Section 7. President ..................................................................10
Section 8. Vice Presidents ............................................................10
Section 9. Secretary ..................................................................11
Section 10. Assistant Secretary .......................................................11
Section 11. Treasurer .................................................................11
Section 12. Assistant Treasurer .......................................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V. CERTIFICATES OF STOCK ......................................................12
Section 1. Certificates ..............................................................12
Section 2. Signatures on Certificates ................................................13
Section 3. Statement of Stock Rights, Preferences, Privileges ........................13
Section 4. Lost Certificates .........................................................13
Section 5. Transfers of Stock ........................................................14
Section 6. Fixing Record Date ........................................................14
Section 7. Registered Stockholders ...................................................14
ARTICLE VI. GENERAL PROVISIONS ........................................................15
Section 1. Dividends .................................................................15
Section 2. Payment of Dividends; Directors' Duties ...................................15
Section 3. Checks ....................................................................15
Section 4. Fiscal Year ...............................................................15
Section 5. Corporate Seal ............................................................15
Section 6. Manner of Giving Notice ...................................................16
Section 7. Waiver of Notice ..........................................................16
Section 8. Annual Statement ..........................................................16
ARTICLE VII. AMENDMENTS ...............................................................16
Section 1. Amendment by Directors or Stockholders ....................................16
</TABLE>
ii
<PAGE> 4
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE 11.
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
<PAGE> 5
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 6
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
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and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III.
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
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Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
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Section 4. Place of Directors' Meetings. The directors may hold their
meetings have one or more offices, and keep the books of the Corporation outside
of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail, or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
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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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
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and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
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ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
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affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
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President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
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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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
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Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
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discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
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other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
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Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
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meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
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CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and acting Assistant Secretary of Chancellor
Media Martin Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
July 23, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 23rd day of
July, 1998.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Assistant Secretary
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<PAGE> 1
EXHIBIT 3.81
[Filed
In the Office of the
Secretary in State of Texas
Dec. 23 1985]
ARTICLES OF INCORPORATION
OF
WESTERN POSTER SERVICE, INC.
I, the undersigned natural person of the age of eighteen (18) years or
more, acting as incorporator of a corporation under the Texas Business
Corporation Act, do hereby adopt the following Articles of Incorporation:
Article I
The name of the corporation is Western Poster Service, Inc.
Article II
The period of its duration is perpetual.
Article III
The purpose for which the corporation is organized is to use
screen-process printing for the purpose of making outdoor advertising posters
and the transaction of any or 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 is One Million (1,000,000); with no par value, and a stated
value of One and No/100 Dollars, ($1.00) each.
Article V
The corporation will not commence business until it has received for
the issuance of shares consideration of the value of One Thousand and No/100
Dollars, ($1,000.00), consisting of money, labor done, or property actually
received.
Article VI
The street address of its initial registered office is 606 City Savings
Building, San Angelo, Texas 76903; and the name of its initial registered agent
at such address is Aaron Goldberg.
Article VII
The number of directors constituting the initial board of directors is
five (5) 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 be elected and qualified are:
<PAGE> 2
(1) Harold Newman, P. O. Box 1726, Jamestown, North Dakota 58401
(2) Rohland R. Reider, P. O. Box 650, San Angelo. Texas 76902
(3) James T. Newman, P. O. Box 1726, Jamestown, North Dakota 58401
(4) Russell J. Newman, P. O. Box 1726, Jamestown, North Dakota
58401
(5) William L. Pierce, P. O. Box 3842, San Angelo, Texas 76902
Article VIII
The name and address of the incorporator is:
Rohland R. Reider, P. O. Box 650, San Angelo, Texas 76902
IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of
December, A.D. 1985.
/s/ Rohland R. Reider
-------------------------------------
Rohland R. Reider
THE STATE OF TEXAS )
)
COUNTY OF TOM GREEN )
SUBSCRIBED AND SWORN TO by the said incorporator, Rohland R. Reider,
this 17th day of December, A.D. 1985.
/s/ Juli D. Shultz
-------------------------------------
Notary Public, State of Texas
My Commission Expires: 02/20/1988
Notary's Printed Name: Juli D. Shultz
Page Two of Two
<PAGE> 1
EXHIBIT 3.82
BY-LAWS
OF
WESTERN POSTER SERVICE, INC.
Article I: Offices
The principal office of the corporation in the State of Texas shall be
located in the City of San Angelo, County of Tom Green. The corporation may have
such other offices, either within or without the State of Texas, 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 31st day in the month of December in each year, beginning with
the year 1986, at the hour of 10:00 o'clock A. 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 Texas, 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 at a special meeting of the
shareholders as soon thereafter as conveniently may be.
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, and shall be called by the
President at the request of the holders of not less than Sixty Percent, (60%),
of all the outstanding shares of the corporation entitled to vote at the
meeting.
Section 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Texas, unless otherwise prescribed
by statute, as the place of meeting for any annual meeting or for any special
meeting called by the Board of Directors. A waiver of notice signed by all
shareholders entitled to vote at a meeting may designate any place, either
within or without the State of Texas, unless otherwise prescribed by statute, as
the place for the holding of such meeting. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal
office of the corporation in the State of Texas.
Section 4. Notice of Meeting. Written notice stating the place, day and
hour of the meeting and, in case of special meeting, the purpose or purposes for
which the meeting is called, shall unless otherwise prescribed by statute, be
delivered not less than five (5) nor more than ten (10) 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 persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If
<PAGE> 2
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. Closing of Transfer Books or Fixing of 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 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 may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, five (5) 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 preceeding 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 ten (10) days; and, in case of a
meeting of shareholders, not less than five (5) 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 of the
execution of the waiver of notice of meeting, 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.
Section 6. Voting Lists. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make a complete list of
the shareholders entitled to vote at each meeting of shareholders or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares held by each. Such list shall 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 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 majority of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time 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.
<PAGE> 3
Section 8. Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy executed in writing by shareholder or by his 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
one (1) month 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 (1) 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 may be voted by such officer, agent or proxy as the
by-laws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may
be voted 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 without a transfer of such shares into his 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 his 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 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.
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 him for as many persons as there are directors to be elected and for whose
election he has the right to vote, or to cumulate his votes by giving one
candidate as many 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 candidates.
<PAGE> 4
Article III: Board of Directors
Section 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of directors
of the corporation shall be not less than three (3) nor more than seven (7).
Each director shall hold office until the next annual meeting of shareholders
and until his successor shall have been elected and qualified.
Section 3. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place for the holding of
additional regular meetings without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the President or any two (2) directors.
The person or persons authorized to call special meetings of the Board of
Directors may fix the place for holding any special meeting of the Board of
Directors called by them.
Section 5. Notice. Notice of any special meeting shall be given at
least five (5) days previously thereto by written notice delivered personally or
mailed to each director at his 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 because the meeting is not lawfully called or
convened.
Section 6. Quorum. A majority of the number of directors fixed by
Section 2 of this Article III 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 7. 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 8. Action Without a Meeting. Any action that may be taken by
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, shall be signed before such
action by all of the directors.
Section 9. Vacancies. Any vacancy 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, unless otherwise provided
by law. A director elected to fill a vacancy shall be
<PAGE> 5
elected for the unexpired term of his predecessor in office. Any directorship to
be filled by reason of an increase in the number of directors may be filled by
election by the Board of Directors for a term of office continuing only until
the next election of directors by shareholders.
Section 10. Compensation. By resolution of the Board of Directors, each
director may be paid his expenses, if any, of 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 therefore.
Section 11. 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
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 IV: Officers
Section 1. Number. The officers of the corporation shall be a
President, a Vice-President, a Secretary and a Treasurer, 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
to be elected by the Board of Directors shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors held after each
annual meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent 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 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
<PAGE> 6
Directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the shareholders and of the Board of Directors. He may sign, with the Secretary
or any other proper officer of the corporation thereunto authorized by the Board
of Directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or these By-Laws
to some other officer or agent of the corporation, or shall be required by law
to be otherwise signed or executed; 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.
Section 6. Vice-President. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice-President 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-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.
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;
(d) keep a register of the postoffice address of each shareholder which
shall be furnished to the Secretary by such shareholder;
(e) sign with the President, certificates for shares of the
corporation, the issuance 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;
(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 by
the President or by the Board of Directors.
Section 8. Treasurer. The Treasurer shall:
(a) have charge and custody of and be responsible for all funds and
securities of the corporation;
(b) receive and give receipts for monies due and payable to the
corporation from any source whatsoever, and deposit all such monies in
the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of
Article V 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.
<PAGE> 7
If required by the Board of Directors, the Treasurer shall give bond for the
faithful discharge of his duties in such sum and with such surety or sureties as
the Board of Directors shall determine.
Section 9. 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 he is also a director of the
corporation.
Article V: 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, 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 depositaries as the Board of Directors
may select.
Article VI: 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 authorized by law and by the Board of
Directors to do so, without 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 therefore upon such terms and indemnity to the corporation as the Board
of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation
may be made only on the stock transfer books of the corporation by the holder of
record thereof or by his legal representative, who shall furnish proper evidence
of authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary
<PAGE> 8
of the corporation, and on surrender for cancellation of the certificate for
such shares. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes.
Article VII: Fiscal Year
The fiscal year of the corporation shall begin on the 1st day of
January and end on the 31st day of December in each year.
Article VIII: Dividends
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its articles of incorporation.
Article IX: Corporate Seal
The Board of Directors shall not provide a corporate seal which shall
be circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words, "Corporate Seal".
Article X: 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 Texas Business Corporation Act, 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 deemed equivalent to the giving of
such notice.
Article XI: Amendments
These By-Laws may be altered, amended or repealed and new By-Laws may
be adopted by the Board of Directors at any regular or special meeting of the
Board of Directors.
<PAGE> 9
WAIVER OF NOTICE
OF FIRST MEETING OF THE BOARD OF DIRECTORS OF
WESTERN POSTER SERVICE, INC.
We, the undersigned, being all of the Directors of Western Poster
Service, Inc., a corporation organized under the laws of the State of Texas, do
hereby waive all notice of the First Meeting of the Directors of said
corporation, whether provided by statute or otherwise, and consent and agree
that such meeting shall be held at 606 City Savings Building, in the City of San
Angelo, Tom Green County, Texas, on the 31st day of December, 1985, at 10:30
A.M., and we consent to the transaction of any and all business that may come
before the meeting.
Dated this 31st day of December, 1985.
/s/ Harold Newman
-------------------------------------
Harold Newman, Director
/s/ Rohland R. Reider
-------------------------------------
Rohland R. Reider, Director
/s/ James T. Newman
-------------------------------------
James T. Newman, Director
/s/ Russell J. Newman
-------------------------------------
Russell J. Newman, Director
/s/ William L. Pierce
-------------------------------------
William L. Pierce, Director
<PAGE> 1
EXHIBIT 3.83
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "THE AMFM RADIO NETWORKS, INC.", FILED IN THIS OFFICE THE
TWENTIETH DAY OF MAY, A.D. 1998, AT 1:15 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[Delaware Secretary's Office Seal] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2898656 8100 AUTHENTICATION: 9092390
981193909 DATE: 05-20-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
THE AMFM RADIO NETWORKS, INC.
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
The AMFM Radio Networks, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors
of the Corporation may, in its sole discretion, offer such shares or
securities, or any part thereof, for purchase or subscription by the holders of
shares of the Corporation, except as may otherwise be provided by this
Certificate of Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of May, 1998.
/s/ Nancy J. Mellady
----------------------------------------
Nancy J. Mellady
Incorporator
<PAGE> 1
EXHIBIT 3.84
BY-LAWS
OF
THE AMFM RADIO NETWORKS, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES....................................................................1
Section 1. Registered Office......................................................1
Section 2. Other Offices..........................................................1
ARTICLE II - MEETING OF STOCKHOLDERS...................................................1
Section 1. Place of Meetings......................................................1
Section 2. Annual Meeting of Stockholders.........................................1
Section 3. Quorum; Adjourned Meetings and Notice Thereof..........................1
Section 4. Voting.................................................................2
Section 5. Proxies................................................................2
Section 6. Special Meetings.......................................................2
Section 7. Notice of Stockholders' Meetings.......................................3
Section 8. Maintenance and Inspection of Stockholder List.........................3
Section 9. Stockholder Action by Written Consent Without a Meeting................4
ARTICLE III - DIRECTORS ...............................................................4
Section 1. The Number of Directors................................................4
Section 2. Vacancies..............................................................5
Section 3. Powers.................................................................5
Section 4. Place of Directors' Meetings ..........................................6
Section 5. Regular Meetings.......................................................6
Section 6. Special Meetings.......................................................6
Section 7. Quorum.................................................................6
Section 8. Action Without Meeting.................................................6
Section 9. Telephonic Meetings....................................................7
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 10. Committees of Directors................................................7
Section 11. Minutes of Committee Meetings..........................................8
Section 12. Compensation of Directors..............................................8
Section 13. Indemnification........................................................8
ARTICLE IV - OFFICERS..................................................................9
Section 1. Officers...............................................................9
Section 2. Election of Officers...................................................9
Section 3. Subordinate Officers...................................................9
Section 4. Compensation of Officers...............................................9
Section 5. Term of Office; Removal and Vacancies..................................9
Section 6. Chairman of the Board.................................................10
Section 7. President.............................................................10
Section 8. Vice Presidents.......................................................10
Section 9. Secretary.............................................................11
Section 10. Assistant Secretary...................................................11
Section 11. Treasurer.............................................................11
Section 12. Assistant Treasurer...................................................12
ARTICLE V - CERTIFICATES OF STOCK.....................................................12
Section 1. Certificates..........................................................12
Section 2. Signatures on Certificates............................................13
Section 3. Statement of Stock Rights, Preferences, Privileges....................13
Section 4. Lost Certificates.....................................................13
Section 5. Transfers of Stock....................................................14
Section 6. Fixing Record Date....................................................14
Section 7. Registered Stockholders...............................................14
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VI - GENERAL PROVISIONS.......................................................15
Section 1. Dividends.............................................................15
Section 2. Payment of Dividends; Directors' Duties...............................15
Section 3. Checks................................................................15
Section 4. Fiscal Year...........................................................15
Section 5. Corporate Seal........................................................15
Section 6. Manner of Giving Notice...............................................16
Section 7. Waiver of Notice......................................................16
Section 8. Annual Statement......................................................16
ARTICLE VII - AMENDMENTS..............................................................17
Section 1. Amendment by Directors or Stockholders................................17
</TABLE>
iii
<PAGE> 5
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held
at any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
1
<PAGE> 6
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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize
another person or persons to act for him by proxy appointed by an instrument in
writing subscribed by such stockholder and bearing a date not more than three
years prior to said meeting, unless said instrument provides for a longer
period. All proxies must be filed with the Secretary of the Corporation at the
beginning of each meeting in order to be counted in any vote at the meeting.
Each stockholder shall have one vote for each share of stock having voting
power, registered in his name on the books of the Corporation on the record
date set by the Board of Directors as provided in Article V, Section 6 hereof.
All elections shall be had and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
2
<PAGE> 7
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given
to each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall
be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time
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<PAGE> 8
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
4
<PAGE> 9
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
The directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a
majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
5
<PAGE> 10
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of
Directors may be called by the President on forty-eight hours' notice to each
director, either personally or by mail or by telegram; special meetings shall
be called by the President or the Secretary in like manner and on like notice
on the written request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a
majority of the authorized number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote
of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these By-Laws. 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. If only one director is authorized, such sole director shall
constitute a quorum. At any meeting, a director shall have the right to be
accompanied by counsel provided that such counsel shall agree to any
confidentiality restrictions reasonably imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
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<PAGE> 11
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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement
of merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property
7
<PAGE> 12
and assets, recommending to the stockholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the By-Laws of the Corporation;
and, unless the resolution or the Certificate of Incorporation expressly so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
8
<PAGE> 13
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more
Vice Presidents, then one or more may be designated as Executive Vice
President, Senior Vice President, or other similar or dissimilar title. At the
time of the election of officers, the directors may by resolution determine the
order of their rank. Any number of offices may be held by the same person
unless the Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
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<PAGE> 14
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such
an officer be elected, 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
these By-Laws. If there is no President, the Chairman of the Board shall in
addition be the Chief Executive Officer of the Corporation and shall have the
powers and duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
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<PAGE> 15
President. The Vice Presidents shall have such other duties as from time to
time may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the
Board of Directors. He shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, 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.
Section 11. 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
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<PAGE> 16
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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
SECTION 1. Certificates. Every holder of stock of the Corporation
shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer of the Corporation, certifying the
number of shares represented by the certificate owned by such stockholder in
the Corporation.
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<PAGE> 17
Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualification, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
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<PAGE> 18
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 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 a record date which shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
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<PAGE> 19
other person, whether or not it shall have express or other notice thereof,
save as expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may
abolish any such reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
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Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears
on the records of the Corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
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ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may
be altered, amended or repealed or new By-Laws may be adopted by the
stockholders or by the Board of Directors 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,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal By-Laws is conferred
upon the Board of Directors by the Certificate of Incorporation, it shall not
divest or limit the power of the stockholders to adopt, amend or repeal
By-Laws.
17
<PAGE> 22
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Assistant Secretary of The
AMFM Radio Networks, Inc., a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
May 21, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 9th
day of June, 1998.
/s/ OMAR CHOUCAIR
-----------------------------------
Omar Choucair, Assistant Secretary
<PAGE> 1
EXHIBIT 3.85
State of Delaware
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA AIR SERVICES CORPORATION", FILED IN THIS
OFFICE ON THE TWELFTH DAY OF JANUARY, A.D. 1998, at 1 O'CLOCK P.M.
[SEAL OF SECRETARY'S OFFICE]
Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8862768
DATE: 01-13-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA AIR SERVICES CORPORATION
FIRST: The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is:
Chancellor Media Air Services Corporation
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the
Corporation shall have authority to issue is one hundred (100) shares of common
stock with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
<PAGE> 3
offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors of
the Corporation may, in its sole discretion, offer such shares or securities, or
any part thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for the breach of fiduciary
duty as a director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
<PAGE> 4
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware. All
rights conferred upon stockholders herein are granted subject to this
reservation.
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 12th day of January, 1998.
/s/ N J Mellady
------------------------
Nancy J. Mellady
Incorporator
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WGAY LICENSE CORP.
Pursuant to Section 2421 of the General Incorporation Law of the State
of Delaware, WGAY License Corp. (the "Corporation"), a Delaware corporation,
hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes
referred to as the "Corporation") is:
"Chancellor Media D.C. License Corp."
2. The Directors and Sole Shareholder of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Andrea Hulcy, its
Vice President, on this 3rd day of June, 1998.
WGAY LICENSE CORP.,
a Delaware Corporation
By: /s/ Andrea Hulcy
--------------------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 1
EXHIBIT 3.86
BY-LAWS
OF
CHANCELLOR MEDIA AIR SERVICES CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I - OFFICES..................................................................1
Section 1. Registered Office.....................................................1
Section 2. Other Offices.........................................................1
ARTICLE II - MEETING OF STOCKHOLDERS.................................................1
Section 1. Place of Meetings.....................................................1
Section 2. Annual Meeting of Stockholders........................................1
Section 3. Quorum: Adjourned Meetings and Notice Thereof.........................1
Section 4. Voting................................................................2
Section 5. Proxies...............................................................2
Section 6. Special Meetings......................................................2
Section 7. Notice of Stockholders' Meetings......................................3
Section 8. Maintenance and Inspection of Stockholder List........................3
Section 9. Stockholder Action by Written Consent Without a Meeting...............4
ARTICLE III - DIRECTORS..............................................................4
Section 1. The Number of Directors...............................................4
Section 2. Vacancies.............................................................5
Section 3. Powers................................................................5
Section 4. Place of Directors' Meetings..........................................6
Section 5. Regular Meetings......................................................6
Section 6. Special Meetings......................................................6
Section 7. Quorum................................................................6
Section 8. Action Without Meeting................................................6
Section 9. Telephonic Meetings...................................................7
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 10. Committees of Directors...............................................7
Section 11. Minutes of Committee Meetings.........................................8
Section 12. Compensation of Directors.............................................8
Section 13. Indemnification.......................................................8
ARTICLE IV - OFFICERS.................................................................9
Section 1. Officers..............................................................9
Section 2. Election of Officers..................................................9
Section 3. Subordinate Officers..................................................9
Section 4. Compensation of Officers..............................................9
Section 5. Term of Office; Removal and Vacancies.................................9
Section 6. Chairman of the Board................................................10
Section 7. President............................................................10
Section 8. Vice Presidents .....................................................10
Section 9. Secretary............................................................11
Section 10. Assistant Secretary..................................................11
Section 11. Treasurer............................................................11
Section 12. Assistant Treasurer..................................................12
ARTICLE V - CERTIFICATES OF STOCK....................................................12
Section 1. Certificates..........................................................12
Section 2. Signatures on Certificates............................................13
Section 3. Statement of Stock Rights, Preferences, Privileges....................13
Section 4. Lost Certificates.....................................................13
Section 5. Transfers of Stock....................................................14
Section 6. Fixing Record Date....................................................14
Section 7. Registered Stockholders...............................................14
</TABLE>
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<TABLE>
<S> <C>
ARTICLE VI - GENERAL PROVISIONS.....................................................15
Section 1. Dividends............................................................15
Section 2. Payment of Dividends; Directors' Duties..............................15
Section 3. Checks...............................................................15
Section 4. Fiscal Year..........................................................15
Section 5. Corporate Seal.......................................................15
Section 6. Manner of Giving Notice..............................................16
Section 7. Waiver of Notice.....................................................16
Section 8. Annual Statement.....................................................16
ARTICLE VII - AMENDMENTS........................................................... 17
Section 1. Amendment by Directors or Stockholders...............................17
</TABLE>
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<PAGE> 5
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority
of the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
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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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof. All elections shall be had
and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
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<PAGE> 7
Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
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and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, 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 such 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.
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
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Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
The directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
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Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the vote of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these By-Laws. 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. If only one director is authorized, such sole director shall
constitute a quorum. At any meeting, a director shall have the right to be
accompanied by counsel provided that such counsel shall agree to any
confidentiality restrictions reasonably imposed by the Corporation.
Section 8. Action Without Meeting, unless otherwise restricted by the
Certificate 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
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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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
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and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer or employee of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the full extent permitted by applicable law.
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ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
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affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
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President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
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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 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, 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.
Section 12. 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, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, 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.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman or Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
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Section 2. Signatures on Certificates. Any or all of the signatures on
the 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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
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discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may
determine 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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
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other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate 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 Certificate of
Incorporation.
Section 2. Payment of Dividends: Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
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Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
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ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Secretary of Chancellor Media
Air Services Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute
the By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
January 12, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 12th day of
January, 1998.
/s/ SCOTT K. GINSBURG
------------------------------------
Scott K. Ginsburg, Secretary
<PAGE> 1
EXHIBIT 3.87
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION", FILED IN THIS
OFFICE ON THE THIRD DAY OF SEPTEMBER, A.D. 1998, AT 10:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY
RECORDER OF DEEDS.
/s/ Edward J. Freel
[STATE SEAL] --------------------------------------------
Edward J. Freel, Secretary of State
2940835 8100 AUTHENTICATION: 9285834
DATE: 09-03-98
981344438
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION
FIRST: The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is:
Chancellor Media Whiteco Outdoor Corporation
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such 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 the State of Delaware.
FOURTH: The aggregate number of all classes of shares which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock
with a par value of $.01 per share.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase or receive any share of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold or
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offered for sale by the Corporation; provided, however, that in connection with
the issuance or sale of any such shares or securities, the Board of Directors of
the Corporation may, in its sole discretion, offer such shares or securities, or
any part thereof, for purchase or subscription by the holders of shares of the
Corporation, except as may otherwise be provided by this Certificate of
Incorporation as from time to time amended.
At all times, each holder of common stock of the Corporation shall be
entitled to one vote for each share of common stock held by such stockholder
standing in the name of such stockholder on the books of the Corporation.
FIFTH: The name and address of the Incorporator is as follows:
Nancy J. Mellady
LATHAM & WATKINS
1001 Pennsylvania Avenue, Suite 1300
Washington, D.C. 20004-2505
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
SEVENTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the breach of fiduciary duty as a
director, except for 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 faith or which involved 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.
EIGHTH: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
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NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware. All rights
conferred upon stockholders herein are granted subject to this reservation.
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I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 3rd day of September, 1998.
/s/ Nancy J. Mellady
-------------------------------------
Nancy J. Mellady
Incorporator
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EXHIBIT 3.88
BY-LAWS
OF
CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION
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TABLE OF CONTENTS
<TABLE>
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PAGE
<S> <C>
ARTICLE I. OFFICES ......................................................................1
Section 1. Registered Office ...........................................................1
Section 2. Other Offices ...............................................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS ....................................................1
Section 1. Place of Meetings ...........................................................1
Section 2. Annual Meeting of Stockholders ..............................................1
Section 3. Quorum; Adjourned Meetings and Notice Thereof ...............................1
Section 4. Voting ......................................................................2
Section 5. Proxies .....................................................................2
Section 6. Special Meetings ............................................................2
Section 7. Notice of Stockholders' Meetings ............................................3
Section 8. Maintenance and Inspection of Stockholder List ..............................3
Section 9. Stockholder Action by Written Consent Without a Meeting .....................4
ARTICLE III. DIRECTORS ..................................................................4
Section 1. The Number of Directors .....................................................4
Section 2. Vacancies ...................................................................5
Section 3. Powers ......................................................................5
Section 4. Place of Directors' Meetings ................................................6
Section 5. Regular Meetings ............................................................6
Section 6. Special Meetings ............................................................6
Section 7. Quorum ......................................................................6
Section 8. Action Without Meeting ......................................................6
Section 9. Telephonic Meetings .........................................................7
Section 10. Committees of Directors ....................................................7
Section 11. Minutes of Committee Meetings ..............................................8
Section 12. Compensation of Directors ..................................................8
Section 13. Indemnification ............................................................8
ARTICLE IV. OFFICERS ....................................................................9
Section 1. Officers ....................................................................9
Section 2. Election of Officers ........................................................9
Section 3. Subordinate Officers ........................................................9
Section 4. Compensation of Officers ....................................................9
Section 5. Term of Office; Removal and Vacancies .......................................9
Section 6. Chairman of the Board ......................................................10
Section 7. President ..................................................................10
Section 8. Vice Presidents ............................................................10
Section 9. Secretary ..................................................................11
Section 10. Assistant Secretary .......................................................11
Section 11. Treasurer .................................................................11
Section 12. Assistant Treasurer .......................................................12
</TABLE>
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<TABLE>
<S> <C>
ARTICLE V. CERTIFICATES OF STOCK ......................................................12
Section 1. Certificates ..............................................................12
Section 2. Signatures on Certificates ................................................13
Section 3. Statement of Stock Rights, Preferences, Privileges ........................13
Section 4. Lost Certificates .........................................................13
Section 5. Transfers of Stock ........................................................14
Section 6. Fixing Record Date ........................................................14
Section 7. Registered Stockholders ...................................................14
ARTICLE VI. GENERAL PROVISIONS ........................................................15
Section 1. Dividends .................................................................15
Section 2. Payment of Dividends; Directors' Duties ...................................15
Section 3. Checks ....................................................................15
Section 4. Fiscal Year ...............................................................15
Section 5. Corporate Seal ............................................................15
Section 6. Manner of Giving Notice ...................................................16
Section 7. Waiver of Notice ..........................................................16
Section 8. Annual Statement ..........................................................16
ARTICLE VII. AMENDMENTS ...............................................................16
Section 1. Amendment by Directors or Stockholders ....................................16
</TABLE>
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ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
Dover, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the
stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
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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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of
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Incorporation, may be called by the President and shall be called by the
President or the 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. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time
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and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
ARTICLE III.
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than
five (5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the
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Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
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Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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
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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.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, 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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property
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and assets, recommending to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the 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. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
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ARTICLE IV.
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the
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affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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 an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 8. Vice Presidents. 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
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President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, 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.
Section 11. 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
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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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
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Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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,
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 or certificates, the Board of
Directors may, in its
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discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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 a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any
14
<PAGE> 18
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
15
<PAGE> 19
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VII.
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special
16
<PAGE> 20
meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 21
CERTIFICATE OF ASSISTANT SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Assistant Secretary of Chancellor
Media Whiteco Outdoor Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages, constitute the
By-Laws of said corporation as duly adopted by the written consent of the
Incorporator, and approved by the Board of Directors, of said corporation as of
September 3, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 4th day of
September, 1998.
/s/ OMAR CHOUCAIR
----------------------------------
Omar Choucair, Assistant Secretary
18
<PAGE> 1
EXHIBIT 3.89
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CHANCELLOR MERGER CORP.", FILED IN THIS OFFICE ON THE SIXTH
DAY OF APRIL, A.D. 1998, AT 3:30 O'CLOCK P.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9014816
DATE: 04-06-98
2880824 8100
981132036
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
CHANCELLOR MERGER CORP.
FIRST: The name of the corporation is Chancellor Merger Corp.
SECOND: The address of the corporations's registered office in the State of
Delaware is: 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of the corporation's registered agent at such 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 the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1,000), and the par value of each of
such shares is $.01.
FIFTH: The name and mailing address of the incorporator is:
Jennifer Ciano
1001 Pennsylvania Ave. N.W.
Washington, D.C. 20004
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the directors are expressly authorized to adopt, amend and repeal the
by-laws of the corporation.
SEVENTH: Elections of directors need not be by written ballot unless the
by-laws of the corporation so provide.
EIGHTH: The corporation reserves the right to amend, alter, or repeal any
provision contained in this certificate of incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are granted subject to this reservation.
NINTH: Each person who is or was a director or officer of the corporation
and each person who serves or served at the request of the corporation as a
director, officer or partner of another enterprise shall be indemnified by the
corporation in accordance with, and to the fullest extent authorized by, the
General Corporation Law of the State of Delaware as the same now exists or may
be hereafter amended. No amendment to or repeal of this Article NINTH shall
apply to or have any effect on the rights of any individual referred to in this
Article NINTH for or with respect to acts or omissions of such individual
occurring prior to such amendment or repeal.
TENTH: To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same now exists or may be hereafter amended, a
director of the corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary
<PAGE> 3
duty as a director. No amendment to or repeal of this Article TENTH shall
apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of
such director occurring prior to the effective date of such amendment or repeal.
Dated: April 6, 1998
/s/ Jennifer Ciano
----------------------------
Jennifer Ciano, Incorporator
2
<PAGE> 1
EXHIBIT 3.90
BY-LAWS
OF
CHANCELLOR MERGER CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES 1
Section 1. Registered Office 1
Section 2. Other Offices 1
ARTICLE II - MEETING OF STOCKHOLDERS 1
Section 1. Place of Meetings 1
Section 2. Annual Meeting of Stockholders 2
Section 3. Quorum; Adjourned Meetings and Notice Thereof 2
Section 4. Voting 2
Section 5. Proxies 3
Section 6. Special Meetings 2
Section 7. Notice of Stockholders' Meetings 4
Section 8. Maintenance and Inspection of Stockholder List 4
Section 9. Stockholder Action by Written Consent Without a Meeting 4
ARTICLE III - DIRECTORS 5
Section 1. The Number of Directors 5
Section 2. Vacancies 5
Section 3. Powers 5
Section 4. Place of Directors' Meetings 6
Section 5. Regular Meetings 6
Section 6. Special Meetings 7
Section 7. Quorum 7
Section 8. Action Without Meeting 6
Section 9. Telephonic Meetings 8
Section 10. Committees of Directors 8
Section 11. Minutes of Committee Meetings 9
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 12. Compensation of Directors 9
Section 13. Indemnification 8
ARTICLE IV - OFFICERS 9
Section 1. Officers 9
Section 2. Election of Officers 9
Section 3. Subordinate Officers 9
Section 4. Compensation of Officers 9
Section 5. Term of Office; Removal and Vacancies 9
Section 6. Chairman of the Board 10
Section 7. President 10
Section 8. Vice Presidents 10
Section 9. Secretary 11
Section 10. Assistant Secretary 11
Section 11. Treasurer 11
Section 12. Assistant Treasurer 12
ARTICLE V - CERTIFICATES OF STOCK 12
Section 1. Certificates 12
Section 2. Signatures on Certificates 13
Section 3. Statement of Stock Rights, Preferences, Privileges 13
Section 4. Lost Certificates 13
Section 5. Transfers of Stock 14
Section 6. Fixing Record Date 14
Section 7. Registered Stockholders 14
ARTICLE VI - GENERAL PROVISIONS 15
Section 1. Dividends 15
Section 2. Payment of Dividends; Directors' Duties 15
Section 3. Checks 15
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 4. Fiscal Year 15
Section 5. Corporate Seal 15
Section 6. Manner of Giving Notice 16
Section 7. Waiver of Notice 16
Section 8. Annual Statement 16
ARTICLE VII - AMENDMENTS 17
Section 1. Amendment by Directors or Stockholders 17
</TABLE>
iii
<PAGE> 5
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Chancellor Merger Corporation, a Delaware
corporation (the "Corporation"). In the event of a direct conflict between the
provisions of these bylaws and the mandatory provisions of the Delaware General
Corporation Law or the provisions of the certificate of incorporation of the
Corporation, such provisions of the Delaware General Corporation Law or the
certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office and registered agent of
the Corporation shall be as designated from time to time by the appropriate
filing by the Corporation in the office of the Secretary of State of the State
of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware 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. Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
1
<PAGE> 6
Section 2. Annual Meeting of Stockholders. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or 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 the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat.
Section 4. 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 the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
2
<PAGE> 7
Section 5. Proxies. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the Corporation on the record date set by the Board of Directors as
provided in Article V, Section 6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the 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. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United
3
<PAGE> 8
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
Section 8. Maintenance and Inspection of 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 entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, 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 such
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.
4
<PAGE> 9
ARTICLE III
DIRECTORS
Section 1. The Number of Directors. The number of directors which shall
constitute the whole Board shall be not less than one (1) and not more than five
(5). The exact number of directors shall be determined by resolution of the
Board, and the initial number of directors shall be one (1). The 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, and each director
elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be
removed, either with or without cause, from the Board of Directors at any
meeting of stockholders by a majority of the stock represented and entitled to
vote thereat.
Section 2. Vacancies. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of
5
<PAGE> 10
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. Place of Directors' Meetings. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. 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 6. Special Meetings. Special meetings of the Board of Directors may
be called by the President on forty-eight hours' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these By-Laws. If a
6
<PAGE> 11
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.
If only one director is authorized, such sole director shall constitute a
quorum. At any meeting, a director shall have the right to be accompanied by
counsel provided that such counsel shall agree to any confidentiality
restrictions reasonably imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate 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, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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 such meeting.
Section 10. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one 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 a member of
a committee, the member or members thereof present at any
7
<PAGE> 12
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 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 to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 12. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the 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.
8
<PAGE> 13
Section 13. Indemnification. The Corporation shall indemnify every person
who is or was a party or is or was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the Corporation
or, while a director or officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
9
<PAGE> 14
Section 3. Subordinate 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.
Section 4. Compensation of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify in
their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, 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 these
By-Laws. If there is no President, the Chairman of the Board shall in addition
be the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
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 stockholders 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
10
<PAGE> 15
an ex-officio member of all committees and shall have the general powers and
duties of management usually vested in the office of President and Chief
Executive Officer of corporations, and shall have such other powers and duties
as may be prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. 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 duties as from time to time may be prescribed
for them, respectively, by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and 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 by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
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 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.
Section 10. 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
11
<PAGE> 16
such determination, the Assistant Secretary designated by the Board of
Directors, shall, in the absence or disability of the Secretary, 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.
Section 11. 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 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, 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.
Section 12. 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, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Treasurer, 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.
12
<PAGE> 17
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the Corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the Corporation.
Section 2. Signatures on Certificates. Any or all of the signatures on the
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.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers,
13
<PAGE> 18
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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,
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 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, stolen 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, stolen or destroyed.
Section 5. Transfers 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, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing Record Date. In order that the Corporation may determine
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 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
14
<PAGE> 19
the purpose of any other lawful action, the Board of Directors may fix a record
date which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. 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.
Section 7. Registered Stockholders. 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 or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by the
laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate 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 Certificate of Incorporation.
Section 2. Payment of Dividends; Directors' Duties. 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 interests of the Corporation, and the directors may abolish any such
reserve.
15
<PAGE> 20
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, 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.
Section 8. Annual Statement. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
16
<PAGE> 21
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors or Stockholders. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the stockholders
or by the Board of Directors 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, amendment, repeal or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
17
<PAGE> 22
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Secretary of
Chancellor Merger Corporation, a Delaware corporation; and
(2) that the foregoing By-Laws, comprising seventeen pages,
constitute the By-Laws of said corporation as duly adopted by the written
consent of the Incorporator, and approved by the Board of Directors, of said
corporation as of April 6, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
6th day of April, 1998.
/s/ SCOTT K. GINSBURG
----------------------------
Scott K. Ginsburg, Secretary
18
<PAGE> 1
EXHIBIT 3.91
THE COMMONWEALTH OF MASSACHUSETTS
- ----------
EXAMINER
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
FEDERAL IDENTIFICATION
NO. 04-30996275
We Kenneth J. O'Keefe Executive Vice President, and
Roger D. Feldman Assistant Clerk of
BROADCAST SERVICES, INC.
- --------------------------------------------------------------------------------
(EXACT Name of Corporation)
located at: 99 Revere Beach Parkway, Medford, MA 02155
--------------------------------------------------------------------
(MASSACHUSETTS Address of Corporation)
do hereby certify that these ARTICLES OF AMENDMENT affecting Articles NUMBERED:
1 and 2
- --------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended hereby)
- ----------
Name
Approved
of the Articles of Organization were duly adopted by unanimous written consent
dated November 2, 1993 by vote of:
100 shares of Common out of 100 shares outstanding,
- ----- ------------------------------ -----
type, class & series, (if any)
being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
See Continuation 1A attached hereto and made part hereof.
See Continuation 2A attached hereto and made part hereof.
- ----------
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any Amendment or item on this form is
insufficient, additions shall be set forth on separate 8-1/2 x 11 sheets of
paper leaving a left-hand margin of at least 1 inch for binding. Additions to
more than one Amendment may be continued on a single sheet so long as each
Amendment requiring each such addition is clearly indicated.
<PAGE> 2
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ------------------------------ ------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ------------------------------ ------------------------------------------------
<S> <C> <C> <C> <C>
COMMON: COMMON:
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
PREFERRED: PREFERRED:
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
</TABLE>
CHANGE the total authorized to:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ------------------------------ ------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ------------------------------ ------------------------------------------------
<S> <C> <C> <C> <C>
COMMON: COMMON:
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
PREFERRED: PREFERRED:
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
- ------------------------------ ------------------------------------------------
</TABLE>
<PAGE> 3
Continuation 1A
To amend Article 1 of the Articles of Organization as follows:
I. The name of the Corporation is:
Broadcast Architecture, Inc.
<PAGE> 4
Continuation 2A
To amend Article 2 of the Articles of Organization as follows:
II. The purpose of the Corporation is to engage in the following business
activities.
To provide market research, loan workout consulting and related services
to the broadcast media industry and conduct any other business activity
from which a corporation is not prohibited by the General Laws of the
Commonwealth of Massachusetts.
<PAGE> 5
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which
event the amendment will become effective on such later date.
EFFECTIVE DATE:
-------------------------------
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 2nd day of November, in the year 1993.
/s/ KENNETH J. O'KEEFE, Executive Vice President
- ----------------------
Kenneth J. O'Keefe
/s/ ROGER D. FELDMAN, Assistant Clerk
- --------------------
Roger D. Feldman
<PAGE> 6
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
======================================
I hereby approve the within articles of amendment and, the filing fee in
the amount of $ having been paid, said articles are deemed to
have been filed with me this day of ,
19 .
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT
To: Douglas E. Onsi
Bingham, Dana & Gould
150 Federal Street, Boston, MA 02110
Telephone: 617-951-8768
<PAGE> 7
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF ORGANIZATION
(UNDER G.L. CH. 156B)
ARTICLE I
THE NAME OF THE CORPORATION IS:
Broadcast Services, Inc.
ARTICLE II
THE PURPOSE OF THE CORPORATION IS TO ENGAGE IN THE
FOLLOWING BUSINESS ACTIVITIES:
To provide loan workout consulting and related services with respect to the
broadcast media industry and conduct any other business activity from which a
corporation is not prohibited by the General Laws of the Commonwealth of
Massachusetts.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8-1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch. Additions to more than one
article may be continued on a single sheet so long as each article requiring
each such addition is clearly indicated.
<PAGE> 8
ARTICLES OF ORGANIZATION
OF
Broadcast Services, Inc.
Article VI A: No director shall be personally liable to the corporation or
to any of its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director notwithstanding any provision of law
imposing such liability; provided, however, that, to the extent required from
time to time by applicable law, this provision shall not eliminate the
liability of a director, to the extent such liability is provided by applicable
law, (a) for any breach of the director's duty of loyalty to the corporation or
its stockholders, (b) for acts or omissions not in good faith which involve
intentional misconduct or a knowing violation of law, (c) under Section 61 or
Section 62 of the Business Corporation Law of the Commonwealth of
Massachusetts, or (d) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article VI A shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director
occurring prior to the effective date of such amendment or repeal.
Article VI B: Meeting of the stockholders of the corporation may be held
anywhere in the United States.
Article VI C: The directors may make, amend, or repeal the By-Laws in
whole or in part except with respect to any provision thereof which by law or
the By-Laws requires action by the stockholders.
Article VI D: The Corporation may be a partner in any business enterprise
which the Corporation would have power to conduct by itself.
Continuation Page 1A
<PAGE> 9
ARTICLE VII
The effective date of organization of the corporation shall be the date
approved and filed by the Secretary of the Commonwealth. If a later effective
date is desired, specify such date which shall not be more than thirty days
after the date of filing.
The information contained in ARTICLE VII is NOT a PERMANENT part of the
Articles of Organization and may be changed ONLY by filing the appropriate form
provided therefor.
ARTICLE VIII
a. The post office address of the corporation IN MASSACHUSETTS is:
99 Revere Beach Parkway
Medford, MA 02155
b. The name, residence and post office address (if different) of the
directors and officers of the corporation are as follows:
<TABLE>
<CAPTION>
NAME RESIDENCE POST OFFICE ADDRESS
<S> <C> <C>
President: Brian D. Stone 8 Perkins Ln.
Lynnfield, MA 01940
Treasurer: Brian D. Stone 8 Perkins Ln.
Lynnfield, MA 01940
Clerk: John H. Chu 46 Grove St.
Boston, MA 02114
Directors: Brian D. Stone 8 Perkins Ln.
Lynnfield, MA 01940
</TABLE>
c. The fiscal year of the corporation shall end on the last day of the month
of: December
d. The name and BUSINESS address of the RESIDENT AGENT of the corporation, if
any, is: Not applicable
ARTICLE IX
By-laws of the corporation have been duly adopted and the president, treasurer,
clerk and directors whose names are set forth above, have been duly elected.
IN WITNESS WHEREOF and under the pains and penalties of perjury, I/WE, whose
signature appears below as incorporator and whose name and business or
residential address ARE CLEARLY TYPED OR PRINTED beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws Chapter 156B and do hereby sign these Articles of
Organization as incorporators this day of August 1990.
/s/ WILLIAM L. WELCH, III
- -------------------------------------
William L. Welch, III
Bingham, Dana & Gould
150 Federal Street
Boston, MA 02110
NOTE: IF AN ALREADY-EXISTING CORPORATION IS ACTING AS INCORPORATOR, TYPE IN THE
EXACT NAME OF THE CORPORATION, THE STATE OR OTHER JURISDICTION WHERE IT
WAS INCORPORATED, THE NAME OF THE PERSON SIGNING ON BEHALF OF SAID
CORPORATION AND THE TITLE HE/SHE HOLDS OR OTHER AUTHORITY BY WHICH SUCH
ACTION IS TAKEN.
<PAGE> 10
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER 156B, SECTION 12
======================================
I hereby certify that, upon an examination of these articles of
organization, duly submitted to me, it appears that the provisions of the
General Laws relative to the organization of corporations have been complied
with, and I hereby approve said articles; and the filing fee in the amount of
$2.00 having been paid, said articles are deemed to have been filed with me
this 3rd day of August, 1990.
Effective date
/s/ MICHAEL JOSEPH CONNOLLY
---------------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
FILING FEE: 1/10 of 1% of the total amount of the authorized capital stock, but
not less than $200.00. For the purpose of filing, shares of stock with a par
value less than one dollar or no par stock shall be deemed to have a par value
of one dollar per share.
PHOTOCOPY OF ARTICLES OF ORGANIZATION TO BE SENT
William L. Welch, III
Bingham, Dana & Gould
150 Federal St., Boston, MA 02110
Telephone: (617)( 951-8890
<PAGE> 1
EXHIBIT 3.92
BY-LAWS
OF
BROADCAST ARCHITECTURE, INC.
(F/K/A BROADCAST SERVICES, INC.)
<PAGE> 2
BROADCAST SERVICES, INC.
Action by Consent of the Incorporator
in Lieu of a Meeting
August 2, 1990
The undersigned, being the sole Incorporator of Broadcast Services,
Inc. a corporation to be formed under the Business Corporation Law of the
Commonwealth of Massachusetts (the "Corporation"), hereby consents, pursuant to
Massachusetts General Laws, Chapter 156B, Section 12, to the adoption of the
following votes, effective as of the date set forth above:
VOTED: That the Articles of Organization of the Corporation,
in the form attached hereto, be executed by the
Incorporator and submitted to the Secretary of the
Commonwealth for his approval and filing, and that a
copy of said Articles of Organization as approved by
said Secretary be entered in the records of the
Corporation.
VOTED: That the By-laws in the form attached hereto are
hereby adopted as the By-laws of the Corporation, and
that a copy of said By-laws be entered in the records
of the Corporation.
VOTED: That the following persons be and hereby are elected
Directors of the Corporation, to hold office until
the first annual meeting of stockholders and until
their successors have been duly elected and
qualified:
Brian D. Stone
VOTED: That the following persons be and hereby are elected
to the offices set forth opposite their names, each
to hold such office until the first annual meeting of
the Board of
<PAGE> 3
-2-
Directors and until their successors have been duly
elected and qualified:
Brian D. Stone - President
Brian D. Stone - Treasurer
John H. Chu - Clerk
VOTED: That the Board of Directors of the Corporation be and
hereby is authorized to cause to be issued any or all
of the shares of the Common Stock of the Corporation,
$.01 par value per share, at such times, to such
persons, for such lawful consideration, and under
such terms as may be determined by said Board of
Directors.
/s/ WILLIAM L. WELCH, III
----------------------------
William L. Welch, III
<PAGE> 4
BROADCAST SERVICES, INC.
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Title Page
<S> <C>
Article I - General ............................... 1
Section 1.1. Offices ......................... 1
Section 1.2. Seal ............................ 1
Section 1.3. Fiscal Year ..................... 1
Article II - Stockholders .......................... 1
Section 2.1. Place of Meeting ................ 1
Section 2.2. Annual Meetings ................. 1
Section 2.3. Special Meetings ................ 2
Section 2.4. Notice of Meetings .............. 2
Section 2.5. Quorum .......................... 2
Section 2.6. Voting .......................... 3
Section 2.7. Inspectors of Election .......... 3
Section 2.8. Action Without Meeting .......... 3
Article III - Directors ............................ 4
Section 3.1. Powers .......................... 4
Section 3.2. Number, Election and
Term of Office ................. 4
Section 3.3. Place of Meetings .............. 4
Section 3.4. Annual Meetings ................ 4
Section 3.5. Regular Meetings ............... 4
Section 3.6. Special Meetings ............... 4
Section 3.7. Notice of Meetings ............. 5
Section 3.8. Quorum ......................... 5
Section 3.9. Voting ......................... 5
Section 3.10. Action Without Meeting ......... 5
Section 3.11. Meetings by Telephone Conference
Calls .......................... 5
Section 3.12. Resignations ................... 6
Section 3.13. Removal ........................ 6
Section 3.14. Vacancies ...................... 6
Section 3.15. Compensation of Directors ...... 6
Section 3.16. Committees ..................... 6
Section 3.17. Issuance of Stock .............. 6
</TABLE>
<PAGE> 5
-2-
TABLE OF CONTENTS
(Continued)
<TABLE>
<CAPTION>
Title Page
<S> <C>
Article IV - Officers........................................... 7
Section 4.1. Officers ..................................... 7
Section 4.2. Election and Term of Office .................. 7
Section 4.3. President .................................... 7
Section 4.4. Vice Presidents .............................. 7
Section 4.5. Treasurer and Assistant
Treasurer .................................... 8
Section 4.6. Clerk and Assistant Clerk .................... 8
Section 4.7. Secretary and Assistant
Secretary .................................... 8
Section 4.8. Resignation .................................. 8
Section 4.9. Removal ...................................... 9
Section 4.10. Vacancies .................................... 9
Section 4.11. Subordinate Officers ......................... 9
Section 4.12. Compensation ................................. 9
Article V - Stock .............................................. 9
Section 5.1. Stock Certificates ........................... 9
Section 5.2. Transfer of Stock ............................ 10
Section 5.3. Fixing Date for Determination
of Stockholders' Rights ...................... 10
Section 5.4. Lost, Mutilated or Destroyed
Certificates ................................. 11
Article VI - Miscellaneous Management Provisions ............... 11
Section 6.1. Execution of Instruments...................... 11
Section 6.2. Corporate Records ............................ 11
Section 6.3. Voting of Securities owned
by this Corporation .......................... 12
Section 6.4. Conflict of Interest ......................... 12
Section 6.5. Indemnification .............................. 13
Article VII - Amendments ....................................... 13
Section 7.1. General ...................................... 13
Section 7.2. Date of Annual Meeting of
Stockholders ................................. 14
</TABLE>
<PAGE> 6
BROADCAST SERVICES, INC.
B Y - L A W S
Article I - General
Section 1.1. Offices. The principal office of the corporation shall be in
_________, Massachusetts. The corporation may also have offices at such other
place or places within or without Massachusetts as the Board of Directors may
from time to time determine or the business of the corporation may require.
Section 1.2. Seal. The seal of the corporation shall be in the form of a
circle inscribed with the name of the corporation, the year of its incorporation
and the word "Massachusetts". When authorized by the Board of Directors and to
the extent not prohibited by law, a facsimile of the corporate seal may be
affixed or reproduced.
Section 1.3. Fiscal Year. The fiscal year of the corporation shall be the
twelve months ending December 31 of each year.
Article II - Stockholders
Section 2.1. Place of Meeting. Meetings of stockholders shall be held at
the principal office of the corporation or, to the extent permitted by the
Articles of Organization, at such other place within the United States as the
Board of Directors may from time to time designate.
Section 2.2. Annual Meetings. The annual meetings of stockholders shall be
held at 10 o'clock a.m. at such other hour as may from time to time be
designated by the Board of Directors, on the first Monday in August of each
year, beginning in 1991, or, if a legal holiday, on the next succeeding full
business day, for the purpose of electing a Board of Directors and transacting
such other business as may properly be brought before such meeting. At the
annual meeting any business may be transacted whether or not the notice of such
meeting shall have contained a reference thereto, except where such a reference
is required by law, the Articles of Organization or these By-laws. If the annual
meeting is not held on the date determined in accordance with this Section, a
special meeting in lieu of the annual meeting may be held with all the force and
effect of an annual meeting.
<PAGE> 7
-2-
Section 2.3. Special Meetings. Special meetings of stockholders may be
called by the President or by the Board of Directors, and shall be called by
the Clerk or, in case of death, absence, incapacity or refusal of the Clerk, by
any other officer, upon written application of one or more stockholders who hold
at least one tenth part in interest of the capital stock entitled to vote at the
meeting. At any special meeting only business to which a reference shall have
been contained in the notice of such meeting may be transacted.
Section 2.4. Notice of Meetings. Written or printed notice of each meeting
of stockholders, stating the place, date and hour and the purposes of the
meeting shall be given by the Clerk or other officer calling the meeting at
least seven days, but not more than sixty days, before the meeting to each
stockholder entitled to vote at the meeting or entitled to such notice by
leaving such notice with him at his residence or usual place of business or by
mailing it, postage prepaid, and addressed to the stockholder at his address as
it appears in the records of the corporation. No notice need be given to any
stockholder if he, or his authorized attorney, waives such notice by a writing
executed before or after the meeting and filed with the records of the meeting
or by his presence, in person or by proxy, at the meeting. Any person authorized
to give notice of any such meeting may make affidavit of such notice, which, as
to the facts therein stated, shall be conclusive. It shall be the duty of every
stockholder to furnish to the Clerk of the corporation or to the transfer agent,
if any, of the class of stock owned by him, his current post office address.
Section 2.5. Quorum. At all meetings of stockholders the holders of a
majority in interest of all capital stock entitled to vote at such meeting or,
if two or more classes of stock are issued, outstanding and entitled to vote as
separate classes, a majority in interest of each class, present in person or
represented by proxy, shall constitute a quorum. The announcement of a quorum by
the officer presiding at the meeting shall constitute a conclusive determination
that a quorum is present. The absence of such an announcement shall have no
significance. Shares of its own stock held by the corporation or held for its
use and benefit shall not be counted in determining the total number of shares
outstanding at any particular time. If a quorum is not present or represented,
the stockholders present or represented and entitled to vote at such meeting, by
a majority vote, may adjourn the meeting from time to time, without notice other
than announcement at the meeting until a quorum is present or represented. At
any adjourned meeting at which a quorum shall be present or represented,
<PAGE> 8
-3-
any business may be transacted which might have been transacted if the meeting
had been held as originally called. The stockholders present at a duly organized
meeting may continue to transact business until adjournment notwithstanding the
withdrawal of one or more stockholders so as to leave less than a quorum.
Section 2.6. Voting. Except as otherwise provided by law or the Articles of
Organization, at all meetings of stockholders each stockholder shall have one
vote for each share of stock entitled to vote and registered in his name and a
proportionate vote for a fractional share. Any stockholder may vote in person or
by proxy dated not more than six months prior to the meeting and filed with the
Clerk of the meeting. Every proxy shall be in writing, subscribed by a
stockholder or his authorized attorney-in-fact, and dated. A proxy with respect
to stock held in the name of two or more persons shall be valid if executed by
any one of them unless at or prior to exercise of the proxy the corporation
receives a specific written notice to the contrary from any one of them. No
proxy shall be valid after the final adjournment of the meeting. Voting on all
matters, including the election of directors, shall be by voice vote unless
voting by ballot is requested by any stockholder. Except as otherwise provided
by law, the Articles of Organization, or these By-laws, at all meetings of
stockholders all questions shall be determined by a vote of a majority of the
shares voting, or, if two or more classes of stock are entitled to vote as
separate classes, a vote of a majority of the shares voting of each class
voting, present in person or represented by proxy. The corporation shall not,
directly or indirectly, vote shares of its own stock.
Section 2.7. Inspectors of Election. Two inspectors may be appointed by
the Board of Directors before or at each meeting of stockholders, or, if no
such appointment shall have been made, the presiding officer may make such
appointment at the meeting. At the meeting for which they are appointed, such
inspectors shall open and close the polls, receive and take charge of the
proxies and ballots, and decide all questions touching on the qualifications of
voters, the validity of proxies and the acceptance and rejection of votes. If
any inspector previously appointed shall fail to attend or refuse or be unable
to serve, the presiding officer shall appoint an inspector in his place.
Section 2.8. Action Without Meeting. Any action which may be taken by
stockholders may be taken without a meeting if all stockholders entitled to vote
on the matter consent to the action in writing and the written consents are
filed with the records of the meetings of stockholders. Such
<PAGE> 9
-4-
consents shall be treated for all purposes as a vote at a meeting.
Article III - Directors
Section 3.1. Powers. Except as otherwise provided by law, the Articles of
Organization or these By-laws, the business of the corporation shall be managed
by a Board of Directors who may exercise all the powers of the corporation.
Section 3.2. Number, Election and Term of Office. The Board of Directors
shall consist of not less than one nor more than thirteen directors. Within the
limits specified, the number of directors shall be determined (a) by a vote of
the stockholders at the annual meeting, or (b) by a vote of the stockholders at
a special meeting called for the purpose by the Board of Directors, or (c) by
vote of the Board of Directors. Except for the initial directors and except as
provided in Section 3.14, the directors shall be elected at the annual meeting
of the stockholders or at a special meeting. All directors shall hold office
until the following annual meeting or special meeting in lieu of the annual
meeting and until their successors are chosen and qualified.
Section 3.3. Place of Meetings. Meetings of the Board of Directors may be
held at any place within or without the Commonwealth of Massachusetts.
Section 3.4. Annual Meetings. A meeting of the Board of Directors for the
election of officers and the transaction of general business shall be held each
year beginning in 19 , at the place of and immediately after the final
adjournment of the annual meeting of stockholders or the special meeting in lieu
of the annual meeting. No notice of such annual meeting need be given.
Section 3.5. Regular Meetings. Regular meetings of the Board of Directors
may be held, without notice, at such time and place as the Board of Directors
may determine. Any director not present at the time of the determination shall
be advised, in writing, of any such determination.
Section 3.6. Special Meetings. Special meetings of the Board of Directors,
including meetings in lieu of the annual or regular meetings, may be held upon
notice at any time upon the call of the President and shall be called by the
President or the Clerk or, in case of the death, absence, incapacity or refusal
of the Clerk, by any other officer, upon written application, signed by any two
directors, stating the purpose of the meeting.
<PAGE> 10
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Section 3.7. Notice of Meetings. Wherever notice of any meetings of the
Board of Directors is required by these By-laws or by vote of the Board of
Directors, such notice shall state the place, date and hour of the meeting and
shall be given to each director by the President, Clerk or other officer calling
the meeting at least two days prior to such meeting if given in person by
telephone or by telegram or at least four days prior to such meeting if given by
mail. Notice shall be deemed to have been duly given, if by mail, by depositing
the notice in the post office as a first class letter, postage prepaid, or, if
by telegram, by completing and filing the notice on a telegraph blank and paying
the requisite fee at any telegraph office, the letter or telegram being
addressed to the director at his last known mailing address as it appears on the
books of the corporation. No notice need be given to any director who waives
such notice by a writing executed before or after the meeting and filed with the
records of the meeting or by his attendance at the meeting without protesting at
or before the commencement of the meeting the lack of notice to him. No notice
of adjourned meetings of the Board of Directors need be given.
Section 3.8. Quorum. At all meetings of the Board of Directors, a majority
of the directors then in office shall constitute a quorum. If a quorum is not
present, those present may adjourn the meeting from time to time until a quorum
is obtained. At any adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted if the meeting had
been held as originally called.
Section 3.9. Voting. At any meeting of the Board of Directors, the vote of
a majority of those present shall decide any matter except as otherwise provided
by law, the Articles of Organization or these By-laws.
Section 3.10. Action Without Meeting. Any action which may be taken at any
meeting of the Board of Directors may be taken without a meeting if all the
directors consent to the action in writing and the written consents are filed
with the records of the meetings of the Board of Directors. Such consents shall
be treated for all purposes as a vote at a meeting.
Section 3.11. Meetings by Telephone Conference Calls. Directors or members
of any committee designated by the Board of Directors 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
<PAGE> 11
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other at the same time and participation by such means shall constitute presence
in person at a meeting.
Section 3.12. Resignations. Any director may resign by giving written
notice to the President or Clerk. Such resignation shall take effect at the time
or upon the event specified therein, or, if none is specified, upon receipt.
Unless otherwise specified in the resignation, its acceptance shall not be
necessary to make it effective.
Section 3.13. Removal. A director may be removed from office with or
without cause by vote of the holders of a majority in interest of the stock
entitled to vote in the election of such director and may be removed from office
with cause by vote of a majority of the directors then in office. A director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section 3.14. Vacancies. In the event of a vacancy in the Board of
Directors, by reason of an enlargement of the Board of Directors or otherwise,
the remaining directors, by majority vote, may elect a director to fill such
vacancy and may exercise the powers of the full Board of Directors until the
vacancy is filled.
Section 3.15. Compensation of Directors. Directors may be paid such
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 3.16. Committees. The Board of Directors may, by vote of a majority
of the directors then in office, appoint from their number one or more
committees and delegate to such committees some or all of their powers to the
extent permitted by law, the Articles of Organization or these By-laws. Except
as the Board of Directors may otherwise determine, any such committee shall be
governed in the conduct of its business by the rules governing the conduct of
the business of the Board of Directors contained in these By-laws and may, by
majority vote of the entire committee, make other rules for the conduct of its
business. The Board of Directors shall have power at any time to fill vacancies
in any such committees, to change its membership or to discharge the committee.
Section 3.17. Issuance at Stock. The Board of Directors shall have power to
issue and sell or otherwise
<PAGE> 12
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dispose of such shares of the corporation's authorized but unissued capital
stock to such persons and at such times and for such consideration, cash,
property, services, expenses, or otherwise, and upon such terms as it shall
determine from time to time.
Article IV - Officers
Section 4.1. Officers. The officers of the corporation shall consist of a
President, a Treasurer, a Clerk, and such other officers with such other titles
as the Board of Directors may determine including but not limited to a Chairman
of the Board of Directors, a Secretary, one or more Vice Presidents, Assistant
Treasurers and Assistant Clerks, and Assistant Secretaries. Any officer may be
required to give a bond for the faithful performance of his duties in such form
and with such sureties as the Board of Directors may determine.
Section 4.2. Election and Term of Office. Except for the initial officers
and except as provided in Section 4.10, the President, Treasurer and Clerk shall
be elected by the Board of Directors at its annual meeting or at the special
meeting held in lieu of the annual meeting and shall hold office until the
following annual meeting of the Board of Directors or the special meeting in
lieu of said annual meeting and until their successors are chosen and qualified.
Other officers may be chosen by the Board of Directors at the annual meeting or
any other meeting and shall hold office for such period as the Board of
Directors may prescribe.
Section 4.3. President. Unless the Board of Directors otherwise determines,
the President shall be the chief executive officer of the corporation. He shall
have the general control and management of the corporation's business and
affairs. He need not be a director. Unless there is a Chairman of the Board, the
President shall preside at all meetings of the Board of Directors and of the
stockholders.
Section 4.4. Vice Presidents. The Vice President, or if there be more than
one, the Vice Presidents, shall perform such of the duties of the President on
behalf of the corporation as may be respectively assigned to him or them from
time to time by the Board of Directors or the President. The Board of Directors
may designate a Vice President as the Executive Vice President, and in the
absence or inability of the President to act, such Executive Vice President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the Board of Directors.
<PAGE> 13
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Section 4.5. Treasurer and Assistant Treasurer. The Treasurer shall be the
principal financial officer of the corporation. He shall have custody and
control over all funds and securities of the corporation, maintain full and
adequate accounts of all moneys received and paid by him on account of the
corporation and, subject to the control of the Board of Directors, discharge all
duties incident to the office of Treasurer. Any Assistant Treasurer shall
perform such of the duties of the Treasurer and such other duties as the Board
of Directors, the President or the Treasurer may designate. The Treasurer shall
have authority, in connection with the normal business of the corporation, to
sign contracts, bids, bonds, powers of attorney and other documents when
required.
Section 4.6. Clerk and Assistant Clerk. The Clerk shall be the principal
recording officer of the corporation. He shall record all proceedings of the
stockholders and discharge all duties incident to the office of Clerk. Unless a
Secretary is appointed by the Board of Directors to perform such duties, the
Clerk shall record all proceedings of the Board of Directors and of any
committees appointed by the Board of Directors. Any Assistant Clerk shall
perform such of the duties of the Clerk and such other duties as the Board of
Directors, the President or the Clerk may designate. In the absence of the Clerk
or any Assistant Clerk from any meeting of stockholders, the Board of Directors
or any committee appointed by the Board of Directors, a Temporary Clerk
designated by the person presiding at the meeting shall perform the duties of
the Clerk. The Clerk shall be a resident of the Commonwealth of Massachusetts
unless a resident agent has been appointed by the corporation pursuant to law to
accept service of process.
Section 4.7. Secretary and Assistant Secretary. If appointed by the Board
of Directors, the Secretary shall record all proceedings of the Board of
Directors and discharge all duties incident to the office of Secretary. Any
Assistant Secretary shall perform such of the duties of the Secretary and such
other duties as the Board of Directors, President or Secretary may designate.
The Board of Directors and any committee appointed by the Board of Directors may
appoint a Secretary and one or more Assistant Secretaries to perform the
functions of the Secretary and Assistant Secretary for such committee.
Section 4.8. Resignation. Any officer may resign by giving written notice
to the President or Clerk. Such resignation shall take effect at the time or
upon the event specified therein, or, if none is specified, upon receipt.
<PAGE> 14
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Unless otherwise specified in the resignation, its acceptance shall not be
necessary to make it effective.
Section 4.9. Removal. An officer may be removed from office with cause,
after reasonable notice and opportunity to be heard, or without cause, in either
case, by vote of a majority of the directors then in office.
Section 4.10. Vacancies. The Board of Directors may fill any vacancy
occurring in any office for any reason and may, in its discretion, leave
unfilled for such period as it may determine any offices other than those of
President, Treasurer and Clerk.
Section 4.11. Subordinate Officers. The Board of Directors may, from time
to time, authorize any officer to appoint and remove subordinate officers and to
prescribe their powers and duties. The term "subordinate officers" shall in no
event include the President, Treasurer and Clerk.
Section 4.12. Compensation. The Board of Directors may fix the compensation
of all officers of the corporation and may authorize any officer upon whom the
power of appointing subordinate officers may have been conferred to fix the
compensation of such subordinate officers.
Article V - Stock
Section 5.1. Stock Certificates. Each stockholder shall be entitled to a
certificate or certificates of stock of the corporation in such form as the
Board of Directors may from time to time prescribe. Each certificate shall be
duly numbered and entered in the books of the corporation as it is issued, shall
state the holder's name and the number and the class and the designation of the
series, if any, of his shares, shall be signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer and may, but need not,
be sealed with the seal of the corporation. If any stock certificate is signed
by a transfer agent, or by a registrar, other than a director, officer or
employee of the corporation, the signatures thereon of the officers may be
facsimiles. In case any officer who has signed or whose facsimile signature has
been placed on any certificate shall have ceased to be such officer before such
certificate is issued, it may nevertheless be issued by the corporation and
delivered with the same effect as if he were such officer at the time of its
issue. Every certificate of stock which is subject to any restriction on
transfer pursuant to the Articles of Organization, the By-laws or any agreement
to which the
<PAGE> 15
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corporation is a party, shall have the restrictions noted conspicuously on the
certificate and shall also set forth on the face or back of the certificate
either (i) the full text of the restriction, or (ii) a statement of the
existence of such restriction and a statement that the corporation will furnish
a copy thereof to the holder of such certificate upon written request and
without charge. Every certificate issued at a time when the corporation is
authorized to issue more than one class or series of stock shall set forth upon
the face or back of the certificate either (i) the full text of the preferences,
voting powers, qualifications and special and relative rights of the shares of
each class and series, if any, authorized to be issued, as set forth in the
Articles of Organization or (ii) a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the
corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 5.2. Transfer of Stock. Subject to any transfer restrictions then
in force, the shares of stock of the corporation shall be transferable only upon
its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives. Such transfer shall be effected by delivery of the old
certificate, together with a duly executed assignment and power to transfer
endorsed thereon or attached thereto and with such proof of the authenticity of
the signature and such proof of authority to make the transfer as the
corporation or its agents may reasonably require, to the person in charge of the
stock and transfer books and ledgers or to such other person as the Board of
Directors may designate, who shall thereupon cancel the old certificate and
issue a new certificate. The corporation may treat the holder of record of any
share or shares of stock as the owner of such stock, and 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 notice thereof, express or
otherwise.
Section 5.3 Fixing Date for Determination of Stockholders' Rights. The
Board of Directors may fix in advance a time, not exceeding sixty days preceding
the date of any meeting of stockholders, or the date for the payment of any
dividend or the making of any distribution to stockholders, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or the last date on which the consent or
dissent of stockholders may be effectively expressed for any purpose, as the
record date for determining the stockholders entitled to notice of, and
<PAGE> 16
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to vote at, such meeting and any adjournment thereof, to receive such dividend
or distribution, to receive such allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of capital stock, or to
express such consent or dissent. In such case only stockholders of record on the
date so fixed shall have such right, notwithstanding any transfer of stock on
the books of the corporation after the record date. In lieu of fixing such
record date, the Board of Directors may close the stock transfer books for all
or any part of such period. In any case in which the Board of Directors does not
fix a record date or provide for the closing of the transfer books, the record
date shall be the thirtieth day next preceding the date of such meeting, the
dividend payment or distribution date, the date for allotment of rights, the
date for exercising of rights in respect of any such change, conversion or
exchange of capital stock, or the date for expressing such consent or dissent,
as the case may be.
Section 5.4. Lost, Mutilated or Destroyed Certificates. No certificates for
shares of stock of the corporation shall be issued in place of any certificate
alleged to have been lost, mutilated or destroyed, except upon production of
such evidence of the loss, mutilation or destruction and upon indemnification of
the corporation and its agents to such extent and in such manner as the Board of
Directors may prescribe and as required by law.
Article VI - Miscellaneous Management Provisions
Section 6.1. Execution of Instruments. Except as otherwise provided in
these By-laws or as the Board of Directors may generally or in particular cases
authorize the execution thereof in some other manner, all instruments,
documents, deeds, leases, transfers, contracts, bonds, notes, checks, drafts and
other obligations made, accepted or endorsed by the corporation shall be signed
by the President or a Vice President, or by the Treasurer or an Assistant
Treasurer, or by the Clerk. Facsimile signatures may be used in the manner and
to the extent authorized generally or in particular cases by the Board of
Directors.
Section 6.2. Corporate Records. The original, or attested copies, of the
Articles of Organization, By-laws, and records of all meetings of incorporators
and stockholders, and the stock and transfer records, which shall contain the
names of all stockholders and the record address and the amount of stock held by
each, shall be kept in the Commonwealth of Massachusetts at the principal office
of the corporation, or at an office of its Clerk, its resident agent or its
transfer agent. The copies and
<PAGE> 17
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records need not all be kept in the same office. They shall be available at all
reasonable times for inspection by any stockholder for any proper purpose. They
shall not be available for inspection to secure a list of stockholders or other
information for the purpose of selling such list or information or copies
thereof or of using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the corporation.
Section 6.3. Voting of Securities owned by this Corporation. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this corporation if he is present at such
meeting, or in his absence by the Treasurer of this corporation if he is present
at such meeting, and (b) whenever, in the judgment of the President, it is
desirable for this corporation to execute a proxy or written consent in respect
to any shares or other securities issued by any other corporation and owned by
this corporation, such proxy or consent shall be executed in the name of this
corporation by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to
execute such proxy or consent by reason of sickness, absence from the United
States or other similar cause, the Treasurer may execute such proxy or consent.
Any person or persons designated in the manner above stated as the proxy or
proxies of this corporation shall have full right, power and authority to vote
the shares or other securities issued by such other corporation and owned by
this corporation the same as such shares or other securities might be voted by
this corporation.
Section 6.4. Conflict of Interest. No contract or other transaction of the
corporation shall, in the absence of fraud, be affected or invalidated by the
fact that any stockholder, director or officer of the corporation or any
corporation, firm or association of which he may be a director, officer,
stockholder or member may be a party to or may have an interest, pecuniary or
otherwise, in, any such contract or other transaction, provided that the nature
and extent of his interest was disclosed to, or known by, the entire Board of
Directors before acting on such contract or other transaction. Except in the
case of any contract or other transaction between the corporation and any other
corporation controlling, controlled by or under common control with the
corporation, any director of the corporation who is also a director, officer,
stockholder or
<PAGE> 18
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member of any corporation, firm or association with which the corporation
proposes to contract or transact any business, or who has an interest, pecuniary
or otherwise, in any such contract or other transaction, may not be counted in
determining the existence of a quorum at any meeting of the Board of Directors
which shall authorize any such contract or such transaction, and such director
shall not participate in the vote to authorize any such contract or transaction.
Any such contract or transaction may be authorized or approved by a majority of
the directors then in office and not disqualified by this Section 6.4 to vote on
such matters, even though the disinterested directors do not constitute a
quorum.
Section 6.5. Indemnification. The corporation shall indemnify each director
and officer against all judgments, fines, settlement payments and expenses,
including reasonable attorneys' fees, paid or incurred in connection with any
claim, action, suit or proceeding, civil or criminal, to which he may be made a
party or with which he may be threatened by reason of his being or having been a
director or officer of the corporation, or, at its request, a director, officer,
stockholder or member of any other corporation, firm or association, or by
reason of his serving or having served, at its request, in any capacity with
respect to any employee benefit plan, and by which he is not so indemnified, or
by reason of any action or omission by him in any such capacity, whether or not
he continues to be a director or officer at the time of incurring such expenses
or at the time the indemnification is made. No indemnification shall be made
hereunder (a) with respect to payments and expenses incurred in relation to
matters as to which he shall be finally adjudged in such action, suit or
proceeding not to have acted in good faith and in the reasonable belief that his
action was in the best interest of the corporation (or, to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan),
or (b) otherwise prohibited by law. The foregoing right of indemnification shall
not be exclusive of other rights to which any director or officer may otherwise
be entitled and shall inure to the benefit of the executor or administrator of
such director or officer.
Article VII - Amendments
Section 7.1. General. These By-laws may be amended, added to or repealed,
in whole or in part, (a) by vote of the stockholders at a meeting, where the
substance of the proposed amendment is stated in the notice of the meeting,
<PAGE> 19
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or (b) by vote of a majority of the directors then in office, except that no
amendment may be made by the Board of Directors on matters reserved to the
stockholders by law or the Articles of Organization or which changes the
provisions of these By-laws relating to meetings of stockholders, to the removal
of directors or to the requirements for amendment of these By-laws. Notice of
any amendment, addition or repeal of any By-law by the Board of Directors
stating the substance of such action shall be given to all stockholders not
later than the time when notice is given of the meeting of stockholders next
following such action by the Board of Directors. Any By-law adopted by the Board
of Directors may be amended or repealed by the stockholders.
Section 7.2. Date of Annual Meeting of Stockholders. No amendment of these
By-laws changing the date of the annual meeting of stockholders may be made
within sixty days before the date fixed in these By-laws for such meeting.
Notice of such change shall be given to all stockholders at least twenty days
before the new date fixed for the meeting.
<PAGE> 1
Exhibit 3.94
ARTICLES OF INCORPORATION
OF
DOWLING COMPANY, INCORPORATED
(VIRGINIA STOCK CORPORATION)
ARTICLE I
The name of the corporation is Dowling Company, Incorporated.
ARTICLE II
The purpose of the corporation is to manufacture, buy, sell, job,
distribute and otherwise acquire or dispose of and deal in any and
all kinds of signs, outdoor advertising; to engineer, manufacture, and develop
electronic devices or equipment; to acquire, develop, or dispose of real estate
and all properties usable in connection therewith, and transact any and all
business properly incidental to or connected with the purpose of this
corporation.
ARTICLE III
The corporation shall have authority to issue Five Hundred (500) shares of
the par value of One Hundred Dollars ($100.00) each.
ARTICLE IV
The initial registered office, whose post office address is Post Office
Box 885, Fredericksburg, Virginia, shall be located at 918 Princess Anne
Street, in the City of Fredericksburg, Virginia. The initial registered agent
shall be T. Stokeley Coleman whose business address is Post Office Box 885,
Fredericksburg, Virginia, and whose office is located at 918 Princess Anne
Street in the City of Fredericksburg, Virginia, who is a resident of Virginia
and a member of the Virginia State Bar.
<PAGE> 2
ARTICLE V
The number of directors constituting the initial Board of Directors shall
be three (3). They are:
John E. Dowling 2900 Jefferson Davis Highway,
Fredericksburg, Virginia
Charles H. Dowling 47 Pendleton Road, Fredericksburg,
Virginia
J. Emory Clotfelter 2900 Jefferson Davis Highway,
Fredericksburg, Virginia
ARTICLE VI
The duration of the corporation is to be perpetual.
Given under our hands this 31st day of March, 1965.
/s/ John E. Dowling
---------------------
John E. Dowling
/s/ Charles H. Dowling
---------------------
Charles H. Dowling
/s/ J. Emory Clotfelter
---------------------
J. Emory Clotfelter
STATE OF VIRGINIA
CITY OF FREDERICKSBURG, to-wit:
I, Helen Hartnell, a Notary Public in and for the City and State
aforesaid, do certify that John E. Dowling, Charles H. Dowling, and J. Emory
Clotfelter whose names are signed to the foregoing writing bearing date on the
31st day of March 1965, have, and each has personally acknowledged the same
before me in the City and State aforesaid.
Given under my hand this 31st day of March, 1965.
My commission expires March 30, 1966.
/s/ Helen Hartnell
------------------------
Notary Public
<PAGE> 3
COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
AT RICHMOND, April 2, 1965
The accompanying articles having been delivered to the State Corporation
Commission on behalf of
Dowling Company, Incorporated
and the Commission having found that the articles comply with the requirements
of law and that all required fees have been paid, it is
ORDERED that the CERTIFICATE OF INCORPORATION
be issued, and that this order, together with the articles, be admitted to
record in the office of the Commission; and that the corporation have the
authority conferred on it by law in accordance with the articles, subject to
the conditions and restrictions imposed by law.
Upon the completion of such recordation, this order and the articles shall
be forwarded for recordation in the office of the clerk of the Circuit Court of
the City of Fredericksburg.
STATE CORPORATION COMMISSION
By /s/ Jessica Dillon
----------------------------
Chairman
VIRGINIA:
In the Clerk's Office of the Circuit Court of the City of Fredericksburg
The foregoing certificate (including the accompanying articles) has been duly
recorded in my office this 15 day of April, 1965 and is now returned to the
State Corporation Commission by certified mail
Copy is illegible
--------------------
<PAGE> 4
COMMONWEALTH OF VIRGINIA
[VIRGINIA STATE SEAL] STATE CORPORATION COMMISSION
I Certify the Following from the Records of the Commission:
the foregoing is a true copy of all documents constituting the charter of
DOWLING COMPANY, INCORPORATED.
Nothing more is hereby certified.
Signed and Sealed at Richmond
on this Date: February 09, 1998
[VIRGINIA STATE SEAL]
/s/ William J. Bridge
------------------------------------------
William J. Bridge, Clerk of the Commission
<PAGE> 1
Exhibit 3.95
BY-LAWS
OF
DOWLING COMPANY, INCORPORATED
Article I
Stockholders' Meeting
Section 1. Annual Meeting: The annual meeting of the stockholders of
the Corporation shall be held on December 31st. in each year, or such other date
as determined.
Section 2. Other Meetings: All meetings of the stockholders shall be
held at the times or places fixed by the Board of Directors. The time and place
shall be stated in the notice or waiver of notice of each meeting. Meetings of
the stockholders shall be held whenever called by the President or the
Secretary, by a majority of the Directors, or by stockholders holding at least
one-tenth of the number of shares of Common Stock entitled to vote then
outstanding.
Section 3. Quorum and Voting: The holders of a majority of the
outstanding shares of Common Stock entitled to vote shall constitute a quorum at
any meeting of the stockholders. Less than a quorum may adjourn the meeting to a
fixed time and place, no further notice of any adjourned meeting being required.
Each stockholder shall be entitled to one vote in person or by proxy for each
share entitled to vote standing in his name on the books of the Corporation.
Section 4. Closing Transfer Books and Record Date: The transfer books
for shares of Common Stock of the Corporation may be
<PAGE> 2
closed by order of the Board of Directors for not exceeding fifty days next
preceding any stockholders' meeting for the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or in order
to make a determination of stockholders for any other proper purpose. 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 stockholders, such date to
be not more than fifty days preceding the date on which the particular action
requiring such determination of the stockholders is to be taken.
Section 5. Conduct of Meetings: The President shall preside over all
meetings of the stockholders. If he is not present, any other officer shall
preside. If none of such officers are present, a Chairman shall be elected by
the meeting. The Secretary of the Corporation shall act as Secretary of all the
meetings if he is present. If he is not present, the Chairman shall appoint a
Secretary of the meeting. The Chairman of the meeting may appoint one or more
inspectors of the election to determine the qualification of voters, the
validity of proxies, and the results of ballots.
ARTICLE II
Board Of Directors
Section 1. Number, Election and Terms: The Board of Directors shall
be elected at the annual meeting of the stockholders or at any special
meeting held in lieu thereof. The number of
<PAGE> 3
Directors shall be three. This number may be increased, or decreased to not less
than two, at any time by amendment of these By-Laws. Directors need not be
stockholders. Directors shall hold office until removed or until the next annual
meeting of the stockholders or until their successors are elected. A majority of
the Directors actually elected and serving at the time of a given meeting shall
constitute a quorum. Less than a quorum may adjourn the meeting to a fixed time
and place, no further notice of any adjourned meeting being required.
Section 2. Removal and Vacancies: The stockholders at any meeting, by a
vote of the holders of a majority of all the shares of Common Stock at the time
outstanding and having voting power, may remove any Director and fill the
vacancy. Any vacancy arising among the Directors may be filled by the remaining
Directors unless sooner filled by the stockholders in meeting.
Section 3. Meetings and Notices: Meetings of the Board of Directors
shall be held at times fixed by resolution of the Board, or upon the call of the
President or the Secretary, or upon the call of a majority of the members of
the Board. Notice of any meeting not held at a time fixed by a resolution of the
Board shall be given to each Director at least 24 hours before the meeting at
his residence or business address or by delivering such notice to him or by
telephoning or telegraphing it to him at least 24 hours before the meeting. Any
such notice shall contain the time and place of the meeting, but need not
contain the purpose of any meeting. Meetings may be held without notice if all
of the Directors
<PAGE> 4
are present or those not present waive notice before or after the meeting.
ARTICLE III
Committees
Section 1. Executive Committee: The Board of Directors may designate,
by resolution adopted by a majority of all the Directors, two or more of the
Directors to constitute an Executive Committee. The Executive Committee, when
the Board of Directors is not in session, may exercise all the powers of the
Directors except to approve an amendment of the articles of incorporation or a
plan of merger or consolidation, and may authorize the seal of the Corporation
to be affixed as required. The Executive Committee may make rules for the
holding and conduct of its meetings, the notice thereof required, and the
keeping of its records.
ARTICLE IV
Officers
Section 1. Election, Removal and Duties: The Board of Directors,
promptly after its election in each year, shall elect the Officers, (a President
must also be a director) and may elect or appoint one or more Vice Presidents or
such other Officers as it may deem proper. Any Officer may hold more than one
office except that the same person shall not be President and Secretary. All of
the Officers shall serve for a term of one year and until their respective
successors are elected, but any Officer may be removed summarily with or without
cause at any time by the vote of a majority of all of the Directors. Vacancies
among the Officers
<PAGE> 5
shall be filled by the Directors. The Officers of the Corporation shall have
such duties as generally pertain to their respective offices as well as such
powers and duties as from time to time may be delegated to them by the Board of
Directors.
ARTICLE V
Certificates of Stock
Section 1. Form: Each stockholder shall be entitled to a certificate
or certificates of stock in such form as may be approved by the Board of
Directors and which are signed by the President or a Vice President or by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
and with the Corporate seal impressed thereon.
Section 2. Transfers: All transfers of stock of the Corporation shall
be made upon its books by surrender of the certificate for the shares
transferred accompanied by an assignment in writing by the holder and may be
accomplished either by the holder in person or by a duly authorized attorney in
fact.
Section 3. Replacements: In case of the loss, mutilation, or
destruction of a certificate of stock, a duplicate certificate may be issued
upon such terms not in conflict with law as the Board of Directors may
prescribe.
Section 4. Transfer Agent and Registrar: The Board of Directors may
also appoint one or more Transfer Agents and Registrars for its stock and may
require stock certificates to be both counter-signed by a Transfer Agent and
registered by a Registrar. If certificates of Common Stock of the Corporation
are
<PAGE> 6
signed both by a Transfer Agent and Registrar, the signatures thereon of the
Officers of the Corporation and the seal of the Corporation thereon may be
facsimiles, engraved or printed. 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 never the less 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 such Officer or Officers of the Corporation.
ARTICLE VI
Seal
Section 1. Seal: The Seal of the Corporation shall be a flat-faced
circular die (of which there may be any number of counter-parts) with the word
"SEAL" and the name of the Corporation engraved thereon.
ARTICLE VII
Voting of Stock Held
Section 1. Voting: Unless otherwise provided by a vote of the Board of
Directors, the President may either appoint Attorneys to vote any stock of any
other Corporation owned by this Corporation
<PAGE> 7
or may attend any meeting of the holders of stock of such other Corporation and
vote such shares in person.
ARTICLE VIII
Checks, Notes and Drafts
Section 1. Signatures: Checks, notes, drafts and other orders for the
payment of money shall be signed by such persons as the Board of Directors from
time to time may authorize. The signature of any such person may be a facsimile.
ARTICLE IX
Fiscal Year
Section 1. Fiscal Year: The fiscal year of the Corporation shall end on
March 31st. each year.
<PAGE> 1
Exhibit 3.96
CERTIFICATE
STATE OF NEVADA [NEVADA STATE SEAL] SECRETARY OF STATE
I, CHERYL A. LAU, Secretary of State of the State of Nevada, do
hereby certify that NEVADA OUTDOOR ADVERTISING, INC. did on the ELEVENTH day of
JANUARY, 1991, file in this office the original Articles of Incorporation; that
said Articles are now on file and of record in the office of the Secretary of
State of the State of Nevada, and further,
that said Articles contain all the provisions
required by the law of said State of Nevada.
IN WITNESS WHEREOF, I have hereunto set my
[SEAL] hand and affixed the Great Seal of State, at
my office in Carson City, Nevada, this
ELEVENTH day of JANUARY , A.D. 1991
---------- ---------- ---
/s/ Cheryl A. Lau
-------------------------------------
Secretary of State
By /s/ Signature Illegible
-----------------------------------
Deputy
<PAGE> 2
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
JAN 11 1991
CHERYL A LAU SECRETARY OF STATE
/s/ CHERYL A LAU
ARTICLES 0F INCORPORATION
OF
NEVADA OUTDOOR ADVERTISING, INC.
* * * * *
FIRST. The name of the corporation is
NEVADA OUTDOOR ADVERTISING, INC.
SECOND. Its principal office in the State of Nevada is located at One
East First Street, Reno, Washoe County, Nevada 89501. The name and address of
its resident agent is The Corporation Trust Company of Nevada, One East First
Street, Reno, Nevada 89501.
THIRD. The nature of the business, or objects or purposes proposed to
be transacted, promoted or carried on are:
To engage in any lawful activity and to manufacture, purchase or
otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer
or otherwise dispose of, trade, deal in and deal with goods, wares and
merchandise and personal property of every class and description.
FOURTH. The amount of the total authorized capital stock of the
corporation is One Hundred Thousand Dollars ($100,000) consisting of one hundred
thousand (100,000) shares of stock of the par value of One Dollar ($1.00) each.
<PAGE> 3
FIFTH. The governing board of this corporation shall be known as
directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the bylaws of this corporation.
The name and post-office address of the first board of directors, which
shall be one (1) in number, are as follows:
NAME POST-OFFICE ADDRESS
Mike Petty P.O. Box 12126
Las Vegas, Nevada 89112-1126
SIXTH. The capital stock, after the amount of the subscription price
or par value has been paid in, shall not be subject to assessment to pay the
debts of the corporation.
SEVENTH. The name and post-office address of each of the incorporators
signing the articles of incorporation are as follows:
NAME POST-OFFICE ADDRESS
M. A. Shelton 818 West Seventh Street
Los Angeles, California 90017
D. A. Tiu 818 West Seventh Street
Los Angeles, California 90017
K. Cullings 818 West Seventh Street
Los Angeles, California 90017
EIGHTH. The corporation is to have perpetual existence.
<PAGE> 4
NINTH. In furtherance, and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
Subject to the bylaws, if any, adopted by the stockholders, to make,
alter or amend the bylaws of the corporation.
To fix the amount to be reserved as working capital over and above its
capital stock paid in, to authorize and cause to be executed mortgages and liens
upon the real and personal property of this corporation.
By resolution passed by a majority of the whole board, to 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 or in the
bylaws of the corporation, 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 stated in the bylaws of the corporation or as may be determined from time
to time by resolution adopted by the board of directors.
When and as authorized by the affirmative vote of stockholders holding
stock entitling them to exercise at least a majority of the voting power given
at a stockholders' meeting called for that purpose, or when authorized by the
written consent of the holders of at least a majority of the voting stock issued
and outstanding, the board of
<PAGE> 5
directors shall have power and authority at any meeting to sell, lease or
exchange all of the property and assets of the corporation, including its good
will and its corporate franchises, upon such terms and conditions as its board
of directors deem expedient and for the best interests of the corporation.
TENTH. Meetings of stockholders may be held outside the State of
Nevada, if the bylaws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of Nevada
at such place or places as may be designated from time to time by the board of
directors or in the bylaws of the corporation.
ELEVENTH. This corporation reserves the right to amend, alter, change
or repeal any provision contained in the articles of incorporation, in the
manner now or hereafter prescribed by statute, or by the articles of
incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
TWELFTH: At all elections of directors of the corporation each holder
of stock possessing voting power is entitled to as many votes as equal the
number of his shares multiplied by the number of directors to be elected, and he
may cast all of such votes for a single director or may
<PAGE> 6
distribute them among the number to be voted for or any two or more of them, as
he may see fit.
THIRTEENTH: To the fullest extent permitted by the laws of the State
of Nevada, as the same exist or may hereafter be amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary or other damages for breach of fiduciary duties as a director. No
repeal, amendment or modification of this Article, whether director or indirect,
shall eliminate or reduce its effect with respect to any act or omission of a
director of the corporation occurring prior to such repeal, amendment, or
modification.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Nevada, do make and file these articles of
incorporation, hereby declaring and certifying that the facts herein stated are
true, and accordingly have hereunto set our hands this 26th day of November,
1990.
/s/ M. A. Shelton
---------------------------------
M. A. Shelton
/s/ D. A. Tiu
---------------------------------
D. A. Tiu
/s/ K. Cullings
---------------------------------
K. Cullings
<PAGE> 7
STATE OF CALIFORNIA
County of LOS ANGELES
On this 26th day of November, 1990, before me, a Notary Public,
personally appeared M. A. Shelton, D. A. Tiu and K. Cullings, who severally
acknowledged that they executed the above instrument.
[SEAL]
OFFICIAL SEAL /s/ Dwight A. Coots
DWIGHT A COOTS -----------------------------
NOTARY PUBLIC - CALIFORNIA Notary Public
LOS ANGELES COUNTY Dwight A. Coots
My comm. expires JUN 4, 1993
CERTIFICATE OF ACCEPTANCE OF APPOINTMENT
BY RESIDENT AGENT
The Corporation Trust Company of Nevada hereby accepts the appointment as
Resident Agent of the above named corporation.
The Corporation Trust Company of Nevada
Resident Agent
By /s/ illegible signature [stamp] Date November , 1990
-------------------
Assistant Secretary
<PAGE> 8
STATE OF NEVADA
DEPARTMENT OF
STATE
I hereby certify that this is a true and complete copy of the document
as filed in this office.
DATED: JAN. 11, 1991
/s/ Cheryl A. Lau
CHERYL A. LAU
Secretary of State
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
<PAGE> 9
STATE OF NEVADA
SECRETARY OF STATE
CERTIFICATE OF CORPORATE STATUS
I, CHERYL A. LAU, the duly elected, qualified and acting Secretary of
State of the State of Nevada, do hereby certify that I am, by the laws of said
State, the custodian of the records relating to corporations organized under the
laws thereof; the revocation of their corporate charters, and their right to
transact and carry on their corporate business; and am the proper officer to
execute this certificate.
I further certify that, at the date of this certificate,
NEVADA OUTDOOR SYSTEMS, INC.
is a corporation duly organized and existing under and by virtue of the laws of
the State of Nevada, having fully complied therewith; is entitled to exercise
therein all the corporate powers and functions recited in its charter or
articles of incorporation, and is in good standing in this State.
[SEAL]
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great
Seal of the State at my office in Carson City, Nevada, this TWENTY-NINTH day of
MARCH, A. D., 1993.
/s/ Cheryl A. Lau
------------------------------
Secretary of State
By /s/ Kimberly DeVries
------------------------------
Deputy
<PAGE> 10
FILING FEE- 75.00 TS
REC. #C20892
CT CORPORATION SYSTEM
PHOENIX, AZ
C/O C1 RENO, NV
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
SEP 04 1991
Cheryl A. Lau SECRETARY OF STATE
Illegible
189-91
- ------------------------------
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
NEVADA OUTDOOR ADVERTISING, a corporation organized under the laws of
the State of Nevada, by its president and assistant secretary does hereby
certify:
1. That the board of directors of said corporation at a meeting duly
convened and held on the 29th day of August, 1991, passed a resolution
declaring that the following change and amendment in the articles of
incorporation is advisable.
RESOLVED that article First of said articles of incorporation be
amended to read as follows: "FIRST. The name of the corporation is NEVADA
OUTDOOR SYSTEMS, INC".
2. That the number of shares of the corporation outstanding and
entitled to vote on an amendment to the articles of incorporation is 2,000;
that the said change and amendment has been consented to and authorized by the
written consent of stockholders holding at least a majority of each class of
stock outstanding and entitled to vote thereon.
ORIGINAL DOCUMENT INSUFFICIENT
QUALITY FOR PROPER REPRODUCTION
SECRETARY OF STATE
<PAGE> 11
IN WITNESS WHEREOF, the said NEVADA OUTDOOR SYSTEMS, INC. has caused this
certificate to be signed by its president and its assistant secretary and its
corporate seal to be hereto affixed this 30th day of August, 1991.
NEVADA OUTDOOR SYSTEMS, INC.
By /s/ Signature Illegible
-------------------------------
President
By /s/ Jamie A. Brody
-------------------------------
Jamie A. Brody, Asst. Secretary
(SEAL)
STATE OF ARIZONA )
) SS:
COUNTY OF MARICOPA )
On August 30, 1991 personally appeared before me, a Notary Public, Robert
S. Laizure and Jamie A. Brody, who acknowledged that they executed the above
instrument.
/s/ Signature Illegible
--------------------------------
Notary Public
(SEAL)
Illegible
9-9-93 SEP 04 1991
Illegible
<PAGE> 1
EXHIBIT 3.97
SECOND AMENDMENT TO THE BYLAWS
OF
NEVADA OUTDOOR SYSTEMS, INC.
Pursuant to Stockholders' Action by Written Consent dated the 11 day of
June 1996 and Section 1 of Article VIII of the Bylaws of Nevada Outdoor
Systems, Inc. (the "Company"), the Stockholders of the Company have hereby
amended Section 4 of Article II of the Company's Bylaws such that it read in
full as follows:
"SECTION 4. At the time and place of the First Meeting of the
stockholders of the Corporation, the election of the Board of Directors shall
take place at a joint meeting of the Stockholders and Board of Directors, which
constitute the First Minutes of the Corporation.
Regular meetings of the Board of Directors shall be held at the office
of the company in the City of Las Vegas, County of Clark, State of Nevada as
often as necessary. Notice of such regular meetings shall be mailed to each
Director by the Secretary at least three days previous to the day fixed for such
meetings, but no regular meeting shall be held void or invalid if such notice is
not given, provided the meeting is held at the time and place fixed by these
By-Laws for holding such regular meetings.
Special meetings of the Board of Directors may be held on the call of
the President or Secretary upon 18 hours prior notice to the members of the
Board of Directors, and such notice may be made via telefacsimile.
Any meeting of the Board, no matter where held, at which all of the
members shall be present, even though without or of which notice shall have
been waived by all absentees, provided a quorum shall be present, shall be
valid for all purposes unless otherwise indicated in the notice calling the
meeting or in the waiver of notice.
Any and all business may be transacted by any meeting of the Board of
Directors, either regular or special".
IN WITNESS WHEREOF, the undersigned on behalf of the Company has
executed this First Amendment to Bylaws this 11 day of June, 1996.
/s/ Robert S. Laizure
----------------------------
Robert S. Laizure, President
<PAGE> 2
BY-LAWS
OF
NEVADA OUTDOOR SYSTEMS, INC.
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of the Company shall
be held at its office in the City of Las Vegas, Clark County, Nevada at 10:00
o'clock a.m. in the offices of Marc C. Gordon, Esq., on the 1st day of February
of each year, if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing directors of the
company to serve during the ensuing year and for the transaction of such other
business as may be brought before the meeting.
At least ten (10) days' written notice specifying the time and place, when
and where, the annual meeting shall be convened, shall be mailed in a United
States Post Office addressed to each of the stockholders of record at the time
of issuing the notice at his or her, or its address last known, as the same
appears on the books of the company.
SECTION 2. Special meetings of the stockholders may be held at the
office of the company in the State of Nevada, or elsewhere, whenever called by
the President, or by the Board of Directors, or by vote of, or by an instrument
in writing signed by the holders of at least a majority of the issued and
outstanding capital stock of the company. At least ten days' written notice of
such meeting, specifying the day and hour and place, when and where such
meeting shall be convened, and objects for calling the same, shall be mailed in
a United States Post Office, addressed to each of the stockholders of record at
the time of issuing the notice, at his or her or its address last known, as the
same appears on the books of the company.
SECTION 3. If all the stockholders of the company shall waive notice
of a meeting, no notice of such meeting shall be required, and whenever all of
the stockholders shall meet in person or by proxy, such meeting shall be valid
for all purposes without call or notice, and at such meeting any corporate
action may be taken.
The written certificate of the officer or officers calling any meeting
setting forth the substance of the notice, and the time and place of the
mailing of the same to the several stockholders, and the respective addresses
to which the same were
<PAGE> 3
mailed, shall be prima facie evidence of the manner and fact of the calling and
giving such notice.
If the address of any stockholder does not appear upon the books of the
company, it will be sufficient to address any notice to such stockholder at the
principal office of the corporation.
SECTION 4. All business lawful to be transacted by the stockholders
of the company, may be transacted at any special meeting or at any adjournment
thereof. Only such business, however, shall be acted upon at special meeting of
the stockholders as shall have been referred to in the notice calling such
meetings, but at any stockholders' meeting at which all of the outstanding
capital stock of the company is represented, either in person or by proxy, any
lawful business may be transacted, and such meeting shall be valid for all
purposes.
SECTION 5. At the stockholders' meetings the holders of a majority
percentage of the entire issued and outstanding capital stock of the company,
shall constitute a quorum for all purposes of such meetings.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend, in person or by proxy, at the time and place fixed by
these By-Laws for any annual meeting, or fixed by a notice as above provided
for a special meeting, a majority in interest of the stockholders present in
person or by proxy may adjourn 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 attend. At any such adjourned meeting at which a
quorum shall be present, any business may be transacted which might have been
transacted as originally called.
SECTION 6. At such meeting of the stockholders every stockholder shall
be entitled to vote in person or by his duly authorized proxy appointed by
instrument in writing subscribed by such stockholder or by his duly authorized
attorney. Each stockholder shall have one vote for each share of stock standing
registered in his or her or its name on the books of the corporation, ten days
preceding the day of such meeting. The votes for directors, and upon demand by
any stockholder, the votes upon any question before the meeting, shall be by
viva voce.
At each meeting of the stockholders, a full, true and complete list, in
alphabetical order, of all the stockholders entitled to vote at such meeting,
and indicating the number of shares held by each, certified by the Secretary of
the company, shall be furnished, which list shall be prepared at least ten days
before such meeting, and shall be open to the inspection of the stockholders, or
their agents or proxies, at the place where such meeting is to be held, and for
ten days prior thereto. Only the persons in whose names shares of stock are
registered on the books of the company for ten days preceding the date of such
-2-
<PAGE> 4
meeting, as evidenced by the list of stockholders, shall be entitled to vote at
such meeting. Proxies and power of attorney to vote must be filed with the
Secretary of the company before an election or a meeting of the stockholders, or
they cannot be used at such election or meeting.
SECTION 7. At each meeting of the stockholders, the polls shall be
opened and closed; the proxies and ballots issued, received, and be taken charge
of, for the purpose of the meeting, and all questions touching the
qualifications of voters and the validity of proxies, and the acceptance or
rejection of votes, shall be decided by two inspectors. Such inspectors shall be
appointed at the meeting by the presiding officer of the meeting.
SECTION 8. At the stockholders' meetings, the regular order of
business shall be as follows:
1. Reading and approval of the Minutes of previous meeting or
meetings;
2. Reports of the Board of Directors, President, Treasurer and
Secretary of the company in the order named;
3. Reports of Committee;
4. Election of Directors;
5. Unfinished Business;
6. New Business;
7. Adjournment.
ARTICLE II
DIRECTORS AND THEIR MEETINGS
SECTION 1. The Board of Directors of the Company shall consist of
one-seven person(s) who shall be chosen by the stockholders annually, at the
annual meeting of the Company, and who shall hold office for one year, and until
their successors are elected and qualify. A number of Directors serving on the
Board in any given year shall be determined by the Stockholders at the annual
meeting of the Company.
SECTION 2. When any vacancy occurs among the Directors by death,
resignation, disqualification or other cause, the stockholders, at any regular
or special meeting, or at any adjourned meeting thereof, or the remaining
Directors, by the affirmative vote of a majority thereof, shall elect a
successor to hold office for the unexpired portion of the term of the Director
whose place shall have become vacant and until his successor shall have been
elected and shall qualify.
-3-
<PAGE> 5
SECTION 3. Meeting of the Directors may be held at the principal
office of the company in the State of Nevada, or elsewhere, at such place or
places as the Board of Directors may, from time to time, determine.
SECTION 4. At the time and place of the First Meeting of the
Stockholders of the Corporation, the election of the Board of Directors shall
take place at a joint meeting of the Stockholders and Board of Directors, which
constitute the First Minutes of the Corporation.
Regular meetings of the Board of Directors shall be held at the office of
the company in the City of Las Vegas, County of Clark, State of Nevada as often
as necessary. Notice of such regular meetings shall be mailed to each Director
by the Secretary at least three days previous to the day fixed for such
meetings, but no regular meeting shall be held void or invalid if such notice is
not given, provided the meeting is held at the time and place fixed by these
By-Laws for holding such regular meetings.
Special meetings of the Board of Directors may be held on the call of the
President or Secretary on at least three days notice by mail or telegraph.
Any meeting of the Board, no matter where held, at which all of the members
shall be present, even though without or of which notice shall have been waived
by all absentees, provided a quorum shall be present, shall be valid for all
purposes unless otherwise indicated in the notice calling the meeting or in the
waiver of notice.
Any and all business may be transacted by any meeting of the Board of
Directors, either regular or special.
SECTION 5. A majority of the Board of Directors in office shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board there be less than a quorum present, a majority of those present may
adjourn from time to time, until a quorum shall be present, and no notice of
such adjournment shall be required. The Board of Directors may prescribe rules
not in conflict with these Bylaws for the conduct of its business; provided,
however, that in the fixing of salaries of the officers of the corporation, the
unanimous action of all of the Directors shall be required.
SECTION 6. A director need not be a stockholder of the corporation.
SECTION 7. The directors shall be allowed and paid all necessary
expenses incurred in attending any meeting of the Board, but shall not receive
any compensation for their services as directors until such time as the company
is able to declare
-4-
<PAGE> 6
and pay dividends on its capital stock.
SECTION 8. The Board of Directors shall make a report to the
stockholders at annual meetings of the stockholders of the condition of the
company, and shall, at request, furnish each of the stockholders with a true
copy thereof.
The Board of Directors in its discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders called for
the purpose of considering any such contract or act, which, if approved, or
ratified by the vote of the holders of a majority of the capital stock of the
company represented in person or by proxy, shall be valid and binding upon the
corporation and upon all the stockholders thereof, as if it had been approved or
ratified by every stockholder of the corporation.
SECTION 9. The Board of Directors shall have the power from time to
time to provide for the management of the offices of the company in such manner
as they see fit, and in particular from time to time to delegate any of the
powers of the Board in the course of the current business of the company to any
standing or special committee or to any officer or agent and to appoint any
persons to be agents of the company with such powers (including the power to
subdelegate), and upon such terms as may be deemed fit.
SECTION 10. The regular order of business at meetings of the Board of
Directors shall be as follows:
1. Reading and approval of the minutes of any previous meeting or
meetings;
2. Reports of officers and committeemen;
3. Election of officers;
4. Unfinished business;
5. New business;
6. Adjournment.
ARTICLE III
OFFICERS AND THEIR DUTIES
SECTION 1. The Board of Directors, at its first and after each
meeting after the annual meeting of the stockholders, shall elect a President,
Vice President, a Secretary and a Treasurer, to hold office for one year next
coming, and until their successors are elected and qualify. The offices of the
Secretary and Treasurer may be held by one person.
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<PAGE> 7
Any vacancy in any of said offices may be filled by the Board of Directors.
The Board of Directors may from time to time, by resolution, appoint such
additional Vice Presidents and additional Assistant Secretaries, Assistant
Treasurers and Transfer Agents of the company as it may deem advisable;
prescribe their duties, and fix their compensation, and all such appointed
officers shall be subject to removal at any time by the Board of Directors. All
officers, agents and factors of the company shall be chosen and appointed in
such manner and shall hold their office for such terms as the Board of
Directors may by resolution prescribe.
SECTION 2. The President shall be the executive officer of the company and
shall have duty of supervision, control, management of the day-to-day operation
of the corporation, subject only to directions from the Board of Directors with
regard to the direction of the company affairs. The President shall further
have the full power to execute any and all documents for and on behalf of the
corporation, other than as specifically limited by the Board of Directors of
the corporation, including, but not limited to, the entering into leases of
real property, equipment, furniture, furnishings, to hire and fire all
personnel, to set and establish operational manuals and policies, to enter into
contracts as may be necessary for the day-to-day operations, to establish lines
of credit for the corporation and to establish accounts payable thereof. The
President shall be a member of any Executive Committee that may be established
and the Chairman thereof; and shall preside at all meetings of the Board of
Directors and all meetings of the Stockholders and shall sign the Certificate
of Stock issued by the company; further, the President shall perform any and
all other duties as shall be prescribed by the Board of Directors, which duties
can be performed in the normal work period.
SECTION 3. The Vice President shall be vested with all the powers and
perform all the duties of the President in his absence or inability to act,
including the signing of the Certificates of Stock issued by the company, and
he shall so perform such other duties as shall be prescribed by the Board of
Directors.
SECTION 4. The Treasurer shall have custody of all the funds and
securities of the company. When necessary or proper, he shall endorse on behalf
of the company for collection checks, notes, and other obligations; he shall
deposit all monies to the credit of the company in such bank or banks or other
depository as the Board of Directors may designate; he shall sign all receipts
and vouchers for payments made by the company, except as herein otherwise
provided. He shall sign with the President all bills of exchange and promissory
notes of the company; he shall also have the care and custody of the stocks,
bonds, certificates, vouchers, evidence of debts, securities and such
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<PAGE> 8
other property belonging to the company as the Board of Directors shall
designate; he shall sign all papers required by law or by those Bylaws or the
Board of Directors to be signed by the Treasurer. Whenever required by the
Board of Directors, he shall render a statement of his cash account; he shall
enter regularly in the books of the company to be kept by him for the purpose,
full and accurate accounts of all monies received and paid by him on account of
the company. He shall at all reasonable times exhibit the books of account to
any Directors of the company during business hours, and he shall perform all
acts incident to the position of Treasurer subject to the control of the Board
of Directors.
The Treasurer shall, if required by the Board of Directors, give bond to
the company conditioned for the faithful performance of all his duties as
Treasurer in such sum, and with such security as shall be approved by the Board
of Directors, with expense of such bond to be borne by the company.
SECTION 5. The Board of Directors may appoint an Assistant Treasurer who
shall have such powers and perform such duties as may be prescribed for him by
the Treasurer of the company or by the Board of Directors, and the Board
of Directors shall require the Assistant Treasurer to give a bond to the company
in such sum and with such security as it shall approve, as conditioned for the
faithful performance of his duties as Assistant Treasurer, the expense of such
bond to be borne by the company.
SECTION 6. The Secretary shall keep the minutes of all meetings of the
Board of Directors and the minutes of all meetings of the stockholders and of
the Executive Committee in books provided for that purpose. He shall attend to
the giving and serving of all notices of the company; he may sign with the
President or Vice President, in the name of the company, all contracts
authorized by the Board of Directors or Executive Committee; he shall affix the
corporate seal of the company thereto when so authorized by the Board of
Directors or Executive Committee; he shall have the custody of the corporate
seal of the company; he shall affix the corporate seal to all Certificates of
Stock duly issued by the company; he shall have charge of Stock Certificate
Books, Transfer Books and Stock Ledgers, and such other books and papers as the
Board of Directors or the Executive Committee may direct, all of which shall at
all reasonable times be open to the examination of any director upon
application at the office of the company during business hours, and he shall,
in general, perform all duties incident to the office of Secretary.
SECTION 7. The Board of Directors may appoint an Assistant Secretary who
shall have such powers and perform such duties as may be prescribed for him by
the Secretary of the company or by the Board of Directors.
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<PAGE> 9
SECTION 8. Unless otherwise ordered by the Board of Directors, the
President shall have full power and authority on behalf of the company to
attend and to act and to vote at any meetings of the stockholders of any
corporation in which the company may hold stock, and at any such meetings,
shall possess and may exercise any and all rights and powers incident to the
ownership of such stock, and which as the new owner thereof, the company might
have possessed and exercised if present. The Board of Directors, by resolution,
from time to time, may confer like powers on any person or persons in place of
the President to represent the company for the purposes in this section
mentioned.
ARTICLE IV
CAPITAL STOCK
SECTION 1. The capital stock of the company shall be issued in such manner
and at such times and upon such conditions as shall be prescribed by the Board
of Directors.
SECTION 2. Ownership of stock in the company shall be evidenced by
certificates of stock in such forms as shall be prescribed by the Board of
Directors, and shall be under the seal of the company and signed by the
President or Vice President and also by the Secretary or by an Assistant
Secretary.
All certificates shall be consecutively numbered; the name of the person
owning the shares represented thereby with the number of such shares and the
date of issue shall be entered on the company's books.
No certificate shall be valid unless it is signed by the President or Vice
President and by the Secretary or Assistant Secretary.
All certificates surrendered to the company shall be cancelled and no new
certificate shall be issued until the former certificate for the same number of
shares shall have been surrendered or cancelled.
SECTION 3. No transfer of stock shall be valid as against the company
except on surrender and cancellation therefor, accompanied by an assignment or
transfer by the owner therefor, made either in person or under assignment, a
new certificate shall be issued therefor.
Whenever any transfer shall be expressed as made for collateral security
and not absolutely, the same shall be expressed in the entry of said transfer
on the books of the company.
SECTION 4. The Board of Directors shall have power and authority to make
all such rules and regulations not inconsistent herewith as it may deem
expedient concerning the issue, transfer
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<PAGE> 10
and registration of certificates for shares of the capital stock of the company.
The Board of Directors may appoint a transfer agent and a registrar of
transfers and may require all stock certificates to bear the signature of such
transfer agent and such registrar of transfer.
SECTION 5. The Stock Transfer Books shall be closed for all meetings of
the stockholders for the period of ten days prior to such meetings and shall be
closed for the payment of dividends during such periods as from time to time
may be fixed by the Board of Directors, and during such periods no stock shall
be transferable.
SECTION 6. Any person or persons applying for a certificate of stock in
lieu of one alleged to have been lost or destroyed, shall make affidavit of
affirmation of the fact, and shall deposit with the company an affidavit.
Whereupon, at the end of six months after the deposit of said affidavit and
upon such person or persons giving Bond of Indemnity to the company with surety
to be approved by the Board of Directors in double the current value of stock
against any damage, loss or inconvenience to the company, which may or can
arise in consequence of a new or duplicate certificate being issued in lieu of
the one lost or missing, the Board of Directors may cause to be issued to such
person or persons a new certificate, or a duplicate of the certificate so lost
or destroyed. The Board of Directors may, in its discretion refuse to issue
such new or duplicate certificate save upon the order of some court having
jurisdiction in such matter, anything herein to the contrary notwithstanding.
ARTICLE V
OFFICES AND BOOKS
SECTION 1. The principal office of the corporation, in Nevada, shall be at
3800 Howard Hughes Parkway, Fourteenth Floor, Las Vegas, Nevada, and the
company may have a principal office in any other state or territory as the
Board of Directors may designate.
SECTION 2. The Stock and Transfer Books and a copy of the By-Laws and
Articles of Incorporation of the company shall be kept at its principal office
in the County of Clark, State of Nevada, for the inspection of all who are
authorized or have the right to see the same, and for the transfer of stock.
All other books of the company shall be kept at such places as may be
prescribed by the Board of Directors.
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<PAGE> 11
ARTICLE VI
MISCELLANEOUS
SECTION 1. The Board of Directors shall have power to reserve over and
above the capital stock paid in, such an amount in its discretion as it may deem
advisable to fix as a reserve fund, and may, from time to time, declare
dividends from the accumulated profits of the company in excess of the amounts
so reserved and pay the same to the stockholders of the company, and may also,
if it deems the same advisable, declare stock dividends of the unissued capital
stock of the company.
SECTION 2. No agreement, contract or obligation (other than checks in
payment of indebtedness incurred by authority of the Board of Directors)
involving the payment of monies or the credit of the company for more than
TWENTY FIVE THOUSAND DOLLARS ($25,000.00), shall be made without the authority
of the Board of Directors, or of the Executive Committee acting as such.
SECTION 3. Unless otherwise ordered by the Board of Directors, all
agreements and contracts shall be signed by the President and the Secretary in
the name and on behalf of the company, and shall have the corporate seal
thereto attached.
SECTION 4. All monies of the corporation shall be deposited when and
as received by the Treasurer in such bank or banks or other depository as may
from time to time be designated by the Board of Directors, and such deposits
shall be made in the name of the company.
SECTION 5. No note, draft, acceptance, endorsement or other evidence
of indebtedness shall be valid or against the company unless the same shall be
signed by the President or Vice President, and attested by the Secretary or an
Assistant Secretary, or signed by the Treasurer or an Assistant Treasurer, and
countersigned by the President, Vice President or Secretary, except that the
Treasurer or an Assistant Treasurer may, without countersignature, make
endorsements for deposit to the credit of the company in all its duly
authorized depositories.
SECTION 6. No loan or advance of money shall be made by the company
to any stockholder or officer therein, unless the Board of Directors shall
otherwise authorize.
SECTION 7. No director nor executive officer of the company shall be
entitled to any salary or compensation for any services performed for the
company, unless such salary or compensation shall be fixed by resolution of the
Board of Directors, adopted by the unanimous vote of all the directors voting
in favor thereof.
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SECTION 8. The company may take, acquire, hold, mortgage, sell, or
otherwise deal in stocks or bonds or securities of any other corporation, if
and as often as the Board of Directors shall so elect.
SECTION 9. The directors shall have power to authorize and cause to
be executed, mortgages and liens, without limit as to amount upon the property
and franchise of this corporation, and pursuant to the affirmative vote, either
in person or by proxy, of the holders of a majority of the capital stock issued
and outstanding; the directors shall have the authority to dispose in any
manner of the whole property of this corporation.
SECTION 10. The company shall have a corporate seal, the design
thereof being as follows:
ARTICLE VIII
AMENDMENT OF BY-LAWS
SECTION 1. Amendments and changes of these Bylaws may be made at any
regular or special meeting of the Board of Directors by a vote of not less than
all of the entire Board, or may be made by a vote of, or a consent in writing
by the holders of a majority in percentage of the issued and outstanding
capital stock.
KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, being the
directors of the above named corporation, do hereby consent to the foregoing
By-Laws and adopt the same as and for the Bylaws of said corporation.
IN WITNESS WHEREOF, we have hereunto set our hands this 1st day of
February, 1991.
/s/ Don Parks, Jr.
----------------------------
DON PARKS, JR.
/s/ Robert S. Laizure
-----------------------------
ROBERT S. LAIZURE
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<PAGE> 1
EXHIBIT 3.98
1696009
STATE OF CALIFORNIA
[LOGO] OFFICE OF THE SECRETARY OF STATE
CORPORATION DIVISION
I, MARCH FONG EU, Secretary of State of the State of California, hereby
certify:
That the annexed transcript has been compared with the corporate record on
file in this office, of which it purports to be a copy, and that same is full,
true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
AUG 14 1991
---------------------------
[SEAL OF THE STATE OF CALIFORNIA]
/S/ March Fong Eu
Secretary of State
<PAGE> 2
E N D O R S E D
F I L E D
In the office of the Secretary of State
of the State of California
AUG 14 1991
MARCH FONG EU, Secretary of State
ARTICLES OF INCORPORATION
OF
MW SIGN CORP.
I
The name of this corporation is MW Sign Corp.
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:
Julie Green
c/o McDonough, Holland & Allen
555 Capitol Mall, Suite 950
Sacramento, California 95814
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 100,000.
V
To the extent provided in any agreement among or between shareholders
or shareholders and the corporation, the provisions of Corporations Code Section
2000 are waived.
<PAGE> 3
VI
The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code with respect
to actions for breach of duty to the corporation and its shareholders.
VIII
The liability of the directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
DATED: August 14,1991.
/s/ Julie Green
-----------------------------------
Julie Green, Incorporator
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<PAGE> 1
EXHIBIT 3.99
BYLAWS
OF
MW SIGN CORP.
<PAGE> 2
BYLAWS
OF
MW SIGN CORP.
TABLE OF CONTENTS
<TABLE>
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ARTICLE I OFFICES...................................................................1
1. Principal executive or business offices...................................1
2. Other offices.............................................................1
ARTICLE II MEETINGS OF SHAREHOLDERS..................................................1
1. Place of meetings.........................................................1
2. Annual meeting............................................................1
3. Special meetings..........................................................1
4. Notice of shareholders' meetings..........................................2
5. Manner of giving notice; affidavit of notice..............................2
6. Quorum....................................................................3
7. Adjourned meeting; notice.................................................3
8. Voting....................................................................3
9. Waiver of notice or consent by absent shareholders........................4
10. Shareholder action by written consent without a meeting...................5
11. Record date for shareholder notice of meeting, voting and
giving consent..........................................................5
12. Proxies...................................................................6
13. Inspectors of election....................................................6
ARTICLE III DIRECTORS.................................................................7
1. Powers....................................................................7
2. Number of directors.......................................................8
3. Election and term of office of directors..................................8
4. Vacancies.................................................................8
5. Place of meetings; telephone meetings.....................................9
6. Annual directors' meeting.................................................9
7. Other regular meetings....................................................9
8. Special meetings..........................................................9
9. Quorum...................................................................10
10. Waiver of notice.........................................................10
11. Adjournment to another time or place.....................................10
12. Notice of adjourned meeting..............................................10
13. Action without a meeting.................................................10
14. Fees and compensation of directors.......................................10
</TABLE>
Bylaws/MWSignCorp
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<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE IV COMMITTEES ..............................................................11
1. Executive and other committees of the board .............................11
2. Meetings and actions of committees ......................................11
ARTICLE V OFFICERS ................................................................12
1. Officers ................................................................12
2. Election of officers.....................................................12
3. Subordinate officers ....................................................12
4. Removal and resignation of officers .....................................12
5. Vacancies in office .....................................................12
6. Chairman of the board ...................................................13
7. President ...............................................................13
8. Vice presidents .........................................................13
9. Secretary ...............................................................13
10. Chief financial officer..................................................14
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS ..............................................14
ARTICLE VII RECORDS AND REPORTS .....................................................15
1. Maintenance of shareholder record and inspection by
shareholders ..........................................................15
2. Maintenance and inspection of bylaws.....................................15
3. Maintenance and inspection of minutes and accounting
records ...............................................................15
4. Inspection by directors .................................................16
5. Annual report to shareholders ...........................................16
6. Financial statements ....................................................16
7. Annual statement of general information .................................16
ARTICLE VIII GENERAL CORPORATE MATTERS ...............................................17
1. Record date for purposes other than notice and voting ...................17
2. Authorized signatories for checks .......................................17
3. Executing corporate contracts and instruments ...........................17
4. Certificates for shares .................................................18
5. Lost certificates .......................................................18
6. Shares of other corporations; how voted..................................18
7. Construction and definitions ............................................18
ARTICLE IX AMENDMENTS .................................................................19
1. Amendment by board of directors or shareholders..........................19
CERTIFICATE OF SECRETARY
</TABLE>
Bylaws/MWSignCorp
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<PAGE> 4
BYLAWS
OF
MW SIGN CORP.
ARTICLE I
OFFICES
1. Principal executive or business offices. The board of directors shall
fix the location of the principal executive office of the corporation in the
State of California.
2. Other offices. Branch or subordinate offices may be established at any
time and at any place by the board of directors.
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. Place of meetings. Meetings of shareholders shall be held at any place
within or outside the State of California designated by the board of directors.
In the absence of a designation by the board, shareholders' meetings shall be
held at the corporation's principal executive office.
2. Annual meeting. The annual meeting of shareholders shall be held each
year on a date and at a time designated by the board of directors. At each
annual meeting, directors shall be elected and any other proper business within
the power of the shareholders may be transacted.
3. Special meeting. A special meeting of the shareholders may be called at
any time by the board of directors, by the chairman of the board, by the
president or vice president or by one or more shareholders holding shares that
in the aggregate are entitled to cast ten percent or more of the votes at that
meeting.
If a special meeting is called by anyone other than the board of directors,
the person or persons calling the meeting shall make a request in writing,
delivered personally or sent by registered mail or by telegraphic or other
written communication, to the chairman of the board or the president, vice
president or secretary, specifying the time and date of the meeting, which is
not less than 35 nor more than 60 days after receipt of the request, and the
general nature of the business
Bylaws/MWSignCorp
<PAGE> 5
proposed to be transacted. Within 20 days after receipt, the officer receiving
the request shall cause notice to be given to the shareholders entitled to vote,
stating that a meeting will be held at the time requested by the person calling
the meeting, and stating the general nature of the business proposed to be
transacted. If notice is not given within 20 days after receipt of the request,
the person or persons requesting the meeting may give the notice. Nothing
contained in the paragraph shall be construed as limiting, fixing or affecting
the time when a meeting of shareholders called by action of the board may be
held.
4. Notice of shareholders' meetings. All notices of meetings of
shareholders shall be sent or otherwise given not fewer than 10 nor more than 60
days before the date of the meeting. The notice shall specify the place, date
and hour of the meeting, and (a) in the case of a special meeting, the general
nature of the business to be transacted, or (b) 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. If directors are to
be elected, the notice shall include the names of all nominees whom the board
intends, at the time of the notice, to present for election.
The notice shall also state the general nature of any proposed action to be
taken at the meeting to approve any of the following matters:
A. A transaction in which a director has a financial interest, within
the meaning of Section 310 of the California Corporations Code;
B. An amendment of the articles of incorporation under Section 902 of
that Code;
C. A reorganization under Section 1201 of that Code;
D. A voluntary dissolution under Section 1900 of that Code; or
E. A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
5. 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 other written communication, charges prepaid, addressed to the
shareholder at the address appearing on the corporation's books or given by the
shareholder to the corporation for purposes of notice. If no address appears on
the corporation's books or has been given as specified above, notice shall be
either (a) sent by first-class mail addressed to the shareholder at the
corporation's principal executive office, or (b) published at least once in a
newspaper of general circulation in the county where the corporation's principal
executive office is located. Notice is
Bylaws/MWSignCorp
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<PAGE> 6
deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication.
If any notice or report mailed to a shareholder at the address appearing on
the corporation's books is returned marked to indicate that the United States
Postal Service is unable to deliver the document to the shareholder at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if the corporation holds the document available for the
shareholder on written demand at the corporation's principal executive office
for a period of one year from the date the notice or report was given to all
other shareholders.
An affidavit of the mailing, or other authorized means of giving notice or
delivering a document, of any notice of shareholders' meeting, report or other
document sent to shareholders may be executed by the corporation's secretary,
assistant secretary or other agent, and shall be filed and maintained in the
minute book of the corporation.
6. Quorum. The presence in person or by proxy of the holders of a majority
of the shares entitled to vote at any meeting of the shareholders shall
constitute a quorum 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 enough
shareholders to leave less than a quorum. Other than to adjourn a meeting, any
action taken by the shareholders must be approved by at least the number of
shares that would constitute a majority of the shares necessary for a quorum.
7. Adjourned meeting; notice. 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 represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either ANNUAL OR special, is adjourned to
another time and place, notice of the adjourned meeting need not be given if the
time and place are announced at the meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than 45 days from the date set for the original meeting,
in which case the board of directors shall set a new record date. Notice of any
such adjourned meeting, if required, shall be given to each shareholder of
record entitled to vote at the adjourned meeting. At any adjourned meeting, the
corporation may transact any business that might have been transacted at the
original meeting.
8. Voting. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with Section 11 of this Article
II, subject to the provisions of Section 702 through 704 of the Corporations
Code of
Bylaws/MWSignCorp
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<PAGE> 7
California relating to voting shares held by a fiduciary, in the name of a
corporation, or in joint ownership. The shareholders' vote may be by voice 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 that 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. If a quorum is present, or if a quorum
has been present earlier at the meeting but some shareholders have withdrawn,
the affirmative vote of a majority of the shares represented and voting,
provided the shares voting affirmatively also constitute 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 law or
by the articles of incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes, i.e., cast for any candidate a
number of votes greater than the number of votes which that shareholder normally
would be entitled to cast, unless the candidates' names have been placed in
nomination before commencement of the voting and a shareholder has given notice
at the meeting, before the voting has begun, of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then all
shareholders entitled to vote may cumulate their votes for candidates in
nomination, and may give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which that
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among any or all of the candidates, as the
shareholder thinks fit. The candidates receiving the highest number of votes, up
to the number of directors to be elected, shall be elected.
9. Waiver of notice or consent by absent shareholders. The transactions of
any meeting of shareholders, either annual or special, however called and
noticed and wherever held, shall be as valid as though they were had at a
meeting duly held after regular call and notice, if a quorum is present either
in person or by proxy, and if each person entitled to vote who was not present
in person or by proxy, either before or after the meeting, signs a written
waiver of notice or a consent to holding the meeting or an approval of the
minutes of the meeting. 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
the shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in Section 601(f) of the California
Corporations Code, the waiver of notice or consent is required to state the
general nature of the action or proposed action. All waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
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A shareholder's attendance at a meeting also constitutes a waiver of notice
of that meeting, unless the shareholder at the beginning of the meeting objects
to the transaction of any business on the ground that the meeting was not
lawfully called or convened. In addition, attendance at a meeting does not
constitute a waiver of any right to object to consideration of matters required
by law to be included in the notice of the meeting which were not so included,
if that objection is expressly made at the meeting.
10. Shareholder action by written consent without a meeting. Any action
that could be taken at an annual or special meeting of shareholders 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 that action at a meeting which all shares entitled to vote on that
action were present and voted.
Directors may be elected by written consent of the shareholders without a
meeting only if the written consents of all outstanding shares entitled to vote
are obtained, except that vacancies on the board, other than vacancies created
by removal, 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 consents shall be filed with the secretary of the corporation and shall
be maintained in the corporate records. Any shareholder or other authorized
person who has given a written consent may revoke it by a writing received by
the secretary of the corporation before written consents of the number of shares
required to authorize the proposed action have been filed with the secretary.
Unless the consents to all shareholders entitled to vote have been
solicited in writing, prompt notice shall be given of any corporate action
approved by shareholders without a meeting by less than unanimous consent to
those shareholders entitled to vote who have not consented in writing. As to
approvals required by California Corporations Code Section 310, transactions in
which a director has a financial interest, Section 317, indemnification of
corporate agents, Section 1201, corporate reorganization, or Section 2007,
certain distributions on dissolution, notice of the approval shall be given at
least 10 days before the consummation of any action authorized by the approval.
11. Record date for shareholder notice of meeting, voting and giving
consent. For purposes of determining the shareholders entitled to receive notice
of and vote at a shareholders' meeting or give written consent to corporate
action without a meeting, the board may fix in advance a record date that is not
more than 60 nor less than 10 days before the date of a shareholders' meeting,
or not more than 60 days before any other action. If no record date is fixed:
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A. The record date for determining shareholders entitled to
receive notice of and vote at a shareholders' meeting shall be the business day
next preceding the day on which notice is given, or if notice is waived as
provided in Section 9 in this Article II, the business day next preceding the
day on which the meeting is held.
B. The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, if no prior action has
been taken by the board, shall be the day on which the first written consent is
given.
C. The record date for determining shareholders for any other
purpose shall be as set forth in Section 1 of Article VIII of these bylaws.
A determination of shareholders of record entitled to receive notice of and
vote at a shareholders' meeting shall apply to any adjournment of the meeting
unless the board fixes a new record date for the adjourned meeting. However, the
board shall fix a new record date if the adjournment is to a date more than 45
days after the date set for the original meeting.
Only shareholders of record on the corporation's books at the close of
business on the record date shall be entitled to any of the notice and voting
rights listed above, notwithstanding any transfer of shares on the corporation's
books after the record date, except as otherwise required by law.
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 effect unless (a) 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 (b) 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
otherwise provided in the proxy. The revocability of a proxy that 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.
13. Inspectors of election. Before any meeting of shareholders, the board
of directors may appoint any persons other than nominees for office to act as
inspectors of election at the meeting or its adjournment. If no inspectors of
election
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are so appointed, the chairman of the meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one or three. If
inspectors are appointed at a meeting on the request of one or more shareholders
or proxies, the holders of a majority of shares or their proxies present at the
meeting shall determine whether one or three inspectors are to be appointed. If
any person appointed as inspector fails to appear or fails or refuses to act,
the chairman of the meeting may, and upon the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill that vacancy.
These inspectors shall: (a) 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 authenticity, validity and effect of proxies; (b) receive
votes, ballots or consents; (c) hear and determine all challenges and questions
in any way arising in connection with the right to vote; (d) count and tabulate
all votes or consents; (e) determine when the polls shall close; (f) determine
the result; and (g) do any other acts that may be proper to conduct the election
or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
1. Powers. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
A. Select and remove all officers, agents and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the articles of incorporation and with these bylaws; fix their
compensation, and require from them security for faithful service.
B. Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency or country and conduct business within or outside the State of
California; and designate any place within or outside the State of California
for the holding of any shareholders' meeting or meetings, including annual
meetings.
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C. Adopt, make and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificate.
D. Authorize the issuance of shares of stock of the corporation,
in consideration of money paid, labor done, services actually rendered, debts or
securities cancelled or tangible or intangible property actually received.
E. Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations and other
evidences of debt and securities.
2. Number of directors. The authorized number of directors shall be two
(2), so long as the Corporation has no more than two (2) shareholders, or until
changed by an amendment to the articles of incorporation or by amendment to
these Bylaws adopted by the vote or written consent of a majority of the
outstanding shares entitled to vote; provided however that after the Corporation
has more than two (2) shareholders, the authorized number of directors shall be
three (3), until changed by an amendment to the articles of incorporation or by
an amendment to this Section 2, Article III of these Bylaws, adopted by the vote
or written consent of a majority of the outstanding shares entitled to vote.
3. Election and term of office of directors. Directors shall be elected
at each annual meeting of the shareholders to hold office until the next annual
meeting. Each director, including a director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and until a
successor has been elected and qualified. No reduction of the authorized number
of directors shall have the effect of removing any director before the
director's term of office expires.
4. Vacancies. A vacancy in the board of directors shall be deemed to
exist (a) if a director dies, resigns or is removed by the shareholders or an
appropriate court, (b) if the board of directors declares vacant the office of a
director who has been convicted of a felony or declared of unsound mind by an
order of court, (c) if the authorized number of directors is increased, or (d)
if at any shareholders' meeting at which one or more directors are elected the
shareholders fail to elect the full authorized number of directors to be voted
for at that meeting.
Any director may resign effective on giving written notice to the chairman
of the board, the president, the secretary or the board of directors unless the
notice specifies a later effective date. If the resignation is effective at a
future time, the board may elect a successor to take office when the resignation
becomes effective.
Except for a vacancy caused by the removal of a director, vacancies on the
board may be filled by a majority of the directors then in office, whether or
not they constitute a quorum, or by a sole remaining director. A vacancy in the
board caused
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by the removal of a director may be filled only by the shareholders, except that
a vacancy created when the board declares the office of a director vacant
because a director has been convicted of a felony or declared of unsound mind
may be filled by the board of directors.
The shareholders may elect a director at any time to fill a vacancy not
filled by the board of directors.
The term of office of a director elected to fill a vacancy shall run until
the next annual meeting of the shareholders, and the director shall hold office
until a successor is elected and qualified.
5. Place of meetings; telephone meetings. Regular meetings of the board
of directors may be held at any place within or outside the State of California
designated by the board. In the absence of a designation, regular meetings shall
be held at the principal executive office of the corporation. Special meetings
of the board shall be held at any place within or outside the State of
California designated in the notice of the meeting, or if the notice does not
state a place, or if there is no notice, at the principal executive office of
the corporation. Any meeting, regular or special may be held by conference
telephone or similar communication equipment, provided that all directors
participating can hear one another.
6. Annual directors' meeting. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place, or at any other place that has been designated by the board of
directors, to consider matters of organization, election of officers and other
business as desired. Notice of this meeting shall not be required unless some
place other than the place of the annual shareholders' meeting has been
designated.
7. Other regular meetings. Other regular meetings of the board of
directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice.
8. Special meetings. Special meetings of the board of directors may be
called for any purpose or purposes at any time by the chairman of the board, the
president, any vice president, the secretary or any two directors.
Special meetings shall be held on four days' notice by mail or 48 hours'
notice delivered personally or by telephone or telegraph. Oral notice given
personally or by telephone may be transmitted either to the director or to a
person at the director's office who can reasonably be expected to communicate it
promptly to the director. Written notice, if used, shall be addressed to each
director at the address shown on the corporation's records. The notice need not
specify the purpose of the meeting, nor need it specify the place if the meeting
is to be held at the principal executive office of the corporation.
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9. Quorum. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn. Every
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 regarded as the act of the board
of directors, subject to the provisions of the Corporations Code of California
as to (a) approval of contracts or transactions in which a director has a direct
or indirect material financial interest, (b) appointment of committees, and (c)
indemnification of directors. 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 that meeting.
10. Waiver of notice. Notice of a meeting, although otherwise required,
need not be given to any director who (a) either before or after the meeting
signs a waiver of notice or a consent to holding the meeting without being given
notice, (b) signs an approval of the minutes of the meeting, or (c) attends the
meeting without protesting the lack of notice before or at the beginning of the
meeting. Waivers of notice or consents need not specify the purpose of the
meeting. All waivers, consents and approvals of the minutes shall be filed with
the corporate records or made a part of the minutes of the meeting.
11. Adjournment to another time or place. Whether or not a quorum is
present, a majority of the directors present may adjourn any meeting to another
time or place.
12. Notice of adjourned meeting. Notice of the time and place of resuming
a meeting that has been adjourned need not be given unless the adjournment is
for more than 24 hours, in which case notice shall be given, before the time set
for resuming the adjourned meeting, to the directors who were not present at the
time of the adjournment. Notice need not be given in any case to directors who
were present at the time of adjournment.
13. Action without a meeting. Any action required or permitted to be
taken by the board of directors may be taken without a meeting, if all members
of the board of directors shall individually or collectively consent in writing
to that action. Any action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. All written consents shall
be filed with the minutes of the proceedings of the board of directors.
14. Fees and compensation of directors. Directors and members of
committees of the board may be compensated for their services, and shall be
reimbursed for expenses, as determined by resolution of the board of directors.
This section shall not be construed to preclude any director from serving the
corporation in any other capacity, as an officer, agent, employee or otherwise,
and receiving compensation for those services.
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ARTICLE IV
COMMITTEES
1. Executive and other committees of the board. The board of directors
may, by resolution adopted by a majority of the authorized number of directors,
designate an executive committee or one or more other committees, each
consisting of two or more directors. The board may designate one or more
directors as alternate members of any committee, to replace any absent member at
a committee meeting. The appointment of committee members or alternate members
requires the vote of a majority of the authorized number of directors. A
committee may be granted any of the powers and authority of the board, to the
extent provided in the resolution establishing the committee, except with
respect to:
A. Approving any action for which the California Corporations Code
also requires the approval of the shareholders or of the outstanding shares;
B. Filling vacancies on the board of directors or any committee of
the board;
C. Fixing directors' compensation for serving on the board or a
committee of the board;
D. Adopting, amending or repealing bylaws;
E. Amending or repealing any resolution of the board of directors
which by its express terms is not amendable or repealable;
F. Making distributions to shareholders, except at a rate or in a
periodic amount or within a price range determined by the board of directors; or
G. Appointing other committees of the board or their members.
2. Meetings and actions of committees. Meetings and actions of
committees shall be governed by bylaw provisions applicable to meetings and
actions of the board of directors, with such changes in the context of those
bylaws as are necessary to substitute the committee and its members for the
board of directors and its members, except that (a) the time of regular meetings
of committees may be determined either by resolution of the board of directors
or by resolution of the committees, (b) special meetings of committees may also
be called by resolution of the board of directors, and (c) notice of special
meetings of committees shall also be given to all alternative members who shall
have the right to attend all meetings of
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the committee. The board of directors may adopt rules for the governance of any
committee not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
1. Officers. The officers of the corporation shall be a president, a
secretary and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers
and such other officers as may be appointed. Any number of offices may be held
by the same person.
2. Election of officers. The officers of the corporation shall be chosen
annually by the board of directors, and shall serve at the pleasure of the board
of directors.
3. Subordinate officers. The board of directors may appoint other
officers as required by the business of the corporation, whose duties shall be
as provided in the bylaws, or as determined by the board of directors or the
president.
4. Removal and resignation of officers. Any officer chosen by the board
of directors may be removed at any time, with or without cause or notice, by the
board of directors. Officers may be employed for a specified term under a
contract of employment if authorized by the board of directors; such officers
may be removed from office at any time under this section, and shall have no
claim against the corporation or individual officers or board members because of
the removal except any right to monetary compensation to which the officer may
be entitled under a contract of employment.
Any officer may resign at any time by giving written notice to the
corporation. Resignation shall take effect on the date of receipt of the notice,
unless a later time is specified in the notice. Unless otherwise specified in
the notice, acceptance of the resignation is not necessary to make it effective.
Any resignation is without prejudice to the rights, if any, of the corporation
to monetary damages under any contract of employment with the officer.
5. Vacancies in office. A vacancy in any office resulting from an
officer's death, resignation, removal, disqualification or from any other cause
shall be filled in the manner prescribed in these bylaws for regular election or
appointment to that office.
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6. Chairman of the board. The board of directors may elect a chairman,
who shall preside, if present, at board meetings and shall exercise and perform
such other powers and duties as may be assigned from time to time by the board
of directors. If there is no president, the chairman of the board shall in
addition be the chief executive officer of the corporation, and shall have the
powers and duties of the president.
7. President. Except to the extent that the bylaws or the board of
directors assign specific powers and duties to the chairman of the board, the
president shall be the corporation's general manager and chief executive officer
and, subject to the control of the board of directors, shall have general
supervision, direction and control over the corporation's business and its
officers. The managerial powers and duties of the president shall include all
the general powers and duties of management usually vested in the office of
president of a corporation, and the president shall have other powers and duties
as prescribed by the board of directors or the bylaws. The president shall
preside at all meetings of the shareholders and, in the absence of the chairman
of the board or if there is no chairman of the board, shall also preside at
meetings of the board of directors.
8. Vice presidents. If desired, one or more vice presidents may be
chosen by the board of directors. In the absence or disability of the president,
the president's duties and responsibilities shall be carried out by the highest
ranking available vice president if vice presidents are ranked, or if not, by a
vice president designated by the board of directors. When so acting, a vice
president shall have all the powers of and be subject to all the restrictions on
the president. Vice presidents of the corporation shall have such other powers
and perform such other duties as are prescribed from time to time by the board
of directors, the bylaws, the president or chairman of the board if there is no
president.
9. Secretary. The secretary shall be present at all shareholders'
meetings and all board meetings and shall take the minutes of the meeting. If
the secretary is unable to be present, the secretary or the presiding officer of
the meeting shall designate another person to take the minutes of the meeting.
The secretary shall keep, or cause to be kept, at the principal executive
office or such other place as designated by the board of directors, a book of
minutes of all meetings and actions of the shareholders, of the board of
directors and of committees of the board. The minutes of each meeting shall
state the time and place the meeting was held, whether it was regular or
special, and, if special, how it was called or authorized, the names of
directors present at a board or committee meeting, the number of shares present
or represented at a shareholders' meetings and an accurate account of the
proceedings.
The secretary shall keep or cause to be kept a record or duplicate record
of shareholders. This record shall show the names of all shareholders and their
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addresses, the number and classes of shares held by each, the number and date of
share certificates issued to each shareholder and the number and date of
cancellation of any certificates surrendered for cancellation.
The secretary shall give notice, or cause notice to be given, of all
shareholders' meetings, board meetings and meetings of committees of the board
for which notice is required by statute or by the bylaws. If the secretary or
other person authorized by the secretary to give notice fails to act, notice of
any meeting may be given by any other officer of the corporation.
10. Chief financial officer. The chief financial officer shall keep or
cause to be kept adequate books of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings and shares.
The books of account shall at all reasonable times be open to inspection by any
director.
The chief financial officer shall (a) deposit corporate funds and other
valuables in the corporation's name and to its credit with depositories
designated by the board of directors, (b) make disbursements of corporate funds
as authorized by the board, (c) render a statement of the corporation's
financial condition and an account of all transactions conducted as chief
financial officer whenever requested by the president or the board of directors,
and (d) have other powers and perform other duties as prescribed by the board of
directors or the bylaws.
Unless the board of directors has elected a separate treasurer, the chief
financial officer shall be deemed to be the treasurer for purposes of giving any
reports or executing any certificates or other documents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
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 that 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
article, an "agent" of the corporation includes any person who is or was a
director, officer, employee or other agent of the corporation, or 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 was a director, officer, employee or agent of a
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corporation which was a predecessor corporation of the corporation or of another
enterprise serving at the request of such predecessor corporation.
ARTICLE VII
RECORDS AND REPORTS
1. Maintenance of shareholder record and inspection by shareholders. The
corporation shall keep at its principal executive office, or at another office
designated by the board of directors, a record of the names and addresses of all
shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders holding at least five percent in the
aggregate of the outstanding voting shares of the corporation shall have the
right to inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours, on five days' prior written demand on
the corporation.
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 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.
2. Maintenance and inspection of bylaws. The corporation shall keep at
its principal executive office the original or a copy of the bylaws as amended
to date, which shall be open to inspection by the shareholders at all reasonable
times during office hours.
3. Maintenance and inspection of minutes and accounting records. The
minutes of proceedings of the shareholders, board of directors and committees of
the board, and the accounting books and records shall be kept at the principal
executive office of the corporation, or at such other place or places as
designated by the board of directors. The minutes shall be kept in written form,
and the accounting books and records shall be kept either in written form or in
a form capable of being converted into written form. The minutes and accounting
books and records shall be open to inspection on 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 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 of the corporation.
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4. 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.
5. Annual report to shareholders. as long as there are fewer than 100
shareholders, the requirement of an annual report to shareholders referred to in
Section 1501 of the California Corporations Code is expressly waived. However,
nothing in this provision shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the shareholders, as
the board considers appropriate.
6. Financial statements. The corporation shall keep a copy of each
annual financial statement, quarterly or other periodic income statement and
accompanying balance sheets prepared by the corporation on file in the
corporation's principal executive office for 12 months. These documents shall be
exhibited at all reasonable times, or copies provided, to any shareholder on
demand.
If no annual report for the last fiscal year has been sent to shareholders,
on written request of any shareholder made not more than 120 days after the
close of the fiscal year the corporation shall deliver or mail to the
shareholder, within 30 days after receipt of the request, a balance sheet as of
the end of that fiscal year and an income statement and statement of changes in
financial position for that fiscal year.
A shareholder or shareholders holding five percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month or
nine-month period, ending more than 30 days before the date of the request, of
the current fiscal year, and a balance sheet of the corporation as of the end of
that period. If such documents are not already prepared, the chief financial
officer shall cause them to be prepared and shall deliver the documents
personally or mail them to the requesting shareholders within 30 days after
receipt of the request. A balance sheet, income statement and statement of
changes in financial position for the last fiscal year shall also be included,
unless the corporation has sent the shareholders an annual report of the last
fiscal year.
Quarterly income statements and balance sheets referred to in this section
shall be accompanied by the report, if any, of independent accountants engaged
by the corporation or the certificate of an authorized corporate officer stating
that the financial statements were prepared without audit from the corporation's
books and records.
7. Annual statement of general information. Every year, during the
calendar month in which the original articles of incorporation were filed with
the California Secretary of State, or during the preceding five calendar months,
the
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corporation shall file a statement with the Secretary of State on the prescribed
form, 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, the
secretary and the chief financial officer, the street address of the
corporation's principal executive office or the principal business office in
this state, a statement of the general type of business constituting the
principal business activity of the corporation, and a designation of the agent
of the corporation for the service of process, all in compliance with Section
1502 of the Corporations Code of California. If there has been no change in the
information contained in the corporation's last annual statement on file in the
Secretary of State's office, the corporation may, in lieu of filing the annual
statement, advise the Secretary of State, on the appropriate form, that no
changes in the required information have occurred during the applicable period.
ARTICLE VIII
GENERAL CORPORATE MATTERS
1. Record date for purposes other than notice and voting. For purposes
of determining the shareholders entitled to receive payment of dividends or
other distributions or entitled to take any lawful action, other than voting at
and receiving notice of shareholders' meetings and giving written consent of the
shareholders without a meeting, the board of directors may fix in advance a
record date which shall not be more than 60 nor less than 10 days before the
date of the dividend payment, distribution or shareholder action. If a record
date is fixed, only shareholders of record at the close of business on that date
shall be entitled to receive the dividend, or distribution or to take the
actions, notwithstanding any transfer of shares on the corporation's books after
the record date, except as otherwise provided by statute.
If the board of directors does not fix a record date in advance, the record
date shall be at the close of business on the later of the day on which the
board of directors adopts the applicable resolution or the 60th day before the
date of the dividend payment or distribution or the shareholder action.
2. Authorized signatories for checks. All checks, drafts, 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 the person
or persons and in the manner authorized by the board of directors.
3. Executing corporate contracts and instruments. Except as otherwise
provided in the articles or in these bylaws, the board of directors by
resolution may authorize any officer or agent to enter into any contract or to
execute any instrument on behalf of the corporation. This authority may be
general or it
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<PAGE> 21
may be confined to specific matters. No officer, agent, employee or other person
purporting to act on behalf of the corporation shall have any authority to bind
the corporation in any way, to pledge the corporation's credit or to render the
corporation liable for any purpose or in any amount, unless that person was
acting with authority duly granted by the board of directors as provided in
these bylaws or unless an unauthorized act was later ratified by the
corporation.
4. Certificates for shares. A certificate or certificates for shares of
the capital stock of the corporation shall be issued to each shareholder when
any of the shares are fully paid. All certificates shall certify the number of
shares and the class or series of shares represented by the certificate. All
certificates shall be signed in the name of the corporation by (a) either the
chairman of the board of directors, the vice chairman of the board of directors,
the president or any vice president, and (b) either the chief financial officer,
any assistant treasurer, the secretary or any assistant secretary.
5. Lost certificates. Except as provided below, no new certificates for
shares shall be issued to replace old certificates unless the old certificate is
surrendered to the corporation for cancellation. If share certificates or
certificates for any other security have been lost, stolen or destroyed, the
board of directors may authorize the issuance of replacement certificates on
terms and conditions as required by the board, which may include a requirement
that the owner give the corporation a bond or other adequate security sufficient
to indemnify the corporation against any claim that may be made against it,
including any expense or liability, on account of the alleged loss, theft or
destruction of the old certificate or the issuance of the replacement
certificate.
6. Shares of other corporations; how voted. Shares of other corporations
standing in the name of this corporation shall be voted by one of the following
persons, listed in the order of preference:
A. President, or person designated by the president;
B. First vice president, or person designated by the first vice
president;
C. Other person designated by the board of directors.
The authority to vote shares granted by this section includes the
authority to execute a proxy in the name of the corporation for the purposes of
voting the shares.
7. Construction and definitions. Unless the context requires otherwise,
the general provisions, rules of construction and definitions in Sections 100
through 195 of the California Corporations Code shall govern the construction of
these bylaws. Without limiting the generality of this provision, the
Bylaws/MWSignCorp
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<PAGE> 22
singular number includes the plural, the plural number includes the singular and
the term "person" includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
1. Amendment by board of directors or shareholders. Except as otherwise
required by law or by the articles of incorporation, these bylaws may be amended
or repealed, and new bylaws may be adopted, by the board of directors or by the
holders of a majority of the outstanding shares entitled to vote.
Bylaws/MWSignCorp
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<PAGE> 23
CERTIFICATE OF SECRETARY
I certify that:
1. I am the presently elected and acting secretary of MW SIGN CORP., a
California corporation; and
2. The foregoing bylaws are the bylaws of the corporation as adopted by
unanimous written consent of the board of directors of the corporation on
[ILLEGIBLE],1991.
/s/ DAVID WEYRICH
------------------------------------
David Weyrich, Secretary
Bylaws/MWSignCorp
<PAGE> 1
Exhibit 3.100
STATE OF CALIFORNIA
[THE GREAT SEAL OF THE STATE OF CALIFORNIA]
OFFICE OF THE
SECRETARY OF STATE
I, EDMUND G. BROWN JR., Secretary of State of the State of California,
hereby certify:
That the annexed transcript has been compared with the RECORD on file in
this office, of which if purports to be a copy, and that same is full, true and
correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
DEC 2- 1971
[CALIFORNIA STATE SEAL]
/s/ Edmund G. Brown Jr.
Secretary of State
<PAGE> 2
ARTICLES OF INCORPORATION OF
MARTIN & MACFARLANE, INC.
1. The name of this corporation is MARTIN & MACFARLANE, INC.
2. The specific business in which this corporation is primarily to engage
is in the general outdoor advertising and display business, both in private and
public places by means of posters, panels, painted bulletins, billboards,
signboards, fences, buildings and other structures suitable for outdoor
advertising purposes; to display moveable, changeable signs, placards, cards,
pictures, designs, mottoes and all forms of advertising signs and devices
operated by clockwork, electrically, or by other forms of power; sale of
fixtures, supplies and equipment for illumination of outdoor advertising
structures; creation, design, contracting for and placement of outdoor
advertising; and the conducting of a travel agency.
3. Other general purposes for which said corporation is formed are as
follows:
A. To make and enter into all manner and kinds of contracts,
agreements, and obligations by or with any person or persons, corporation
or corporations, association or associations for advertising, advertising
space, and for the distributing, purchasing, acquiring, holding,
manufacturing and selling or disposing of, either as principal or agent,
upon commission or otherwise, any or all of the products of this
corporation; to perform any and all acts connected therewith or arising
therefrom, or incidental thereto, and any and all acts proper or necessary
for the purposes of the business of this corporation.
B. To advertise and to carry on a general advertising and publicity
business, both as principal and agent, in all its forms and
-1-
<PAGE> 3
branches, including radio or television advertising contracts with and for
others and the purchase and contract for advertising space in all recognized
mediums, such as billboards, magazines, newspapers and periodicals, regardless
of kind and character.
C. To solicit, contract for and give publicity to advertising of all
kinds, and to develop and extend the business interests of individuals, firms,
corporations and individuals or associated interests of all kinds whatsoever;
also to carry on the business of production and creation of advertising in all
of its forms; to engage in and carry on a general advertising agency business,
both as principal and agent, including the preparation and arrangement of
advertising through all mediums and/or periodicals suitable for advertising
purposes in all of its branches.
D. To undertake and carry on business as advertisers, electricians,
engineers, carpenters, metal workers, chemists, photographers, printers,
publishers, painters and decorators, all in connection with the advertising
business or any other business, also as suppliers, manufacturers, operators and
producers of all or any advertising devices and parts thereof, including
machinery, plant apparatus, implements, utensils, goods, commodities, articles
and things necessary or desirable in connection with the conduct and carrying
on of the business of the company.
E. To print, manufacture, produce, prepare, buy, sell, distribute, deal
with and deal in, either as principal or agent, publications, advertising,
news, literature and printed matter of every kind and description, including
job-printing of all kinds, and all machinery, equipment, materials, articles or
ingredients used or useful in connection therewith.
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<PAGE> 4
F. To purchase, lease, mortgage, sell and otherwise acquire, deal with,
develop, subdivide, operate and dispose of all types of property, both real and
personal, to manufacture, assemble and distribute all types of goods, wares and
supplies, to receive and dispose of letters patent of the United States or any
foreign country, patent rights, licenses, privileges, inventions, processes,
copyrights, trademarks and tradenames, and governmental grants of every
character which this corporation may deem advantageous in its business.
G. To make and perform contracts of every kind for any lawful purposes
without limit as to amount, with any person, corporation or governmental body.
H. To act as partner or joint venturer or in any other legal capacity in
any transaction.
I. To purchase or otherwise acquire and exercise any right or power
conferred by any statute, ordinance, order, license, authority, franchise,
commission or privilege which any governmental authority may be empowered to
enact.
J. To subscribe for, purchase and otherwise acquire, sell, transfer and
otherwise dispose of capital stock, bonds, securities and other evidences of
indebtedness, good will, rights, assets and property of any and every kind, of
any other corporation, association, firm or person, together with interests in
any trust estate now or hereafter existing, and whether created by the laws of
the State of California or of any other State, territory or country, and to
operate, manage and control such properties, either in the name of such other
legal entity or in the name of this corporation, and to exercise all the
rights, powers and privileges of ownership,
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<PAGE> 5
including the right to vote thereupon with powers to designate some person or
persons for that purpose from time to time, and to the same extent as natural
persons could do.
K. To aid in any manner, financially or otherwise, any person, firm,
corporation or association of which any shares of stock, bonds, notes,
debentures or other securities or evidences of indebtedness are held directly
or indirectly by this corporation; and for this purpose to guarantee the
contracts, dividends, bonds, notes or other obligations of such other persons,
firms, corporations or associations.
L. To borrow and lend money: but nothing herein contained shall be
construed as authorizing the business of purposes of a Bank, Savings
Association or Trust Company.
M. To issue bonds, notes or other obligations of this corporation for
any of the purposes of this corporation, either secured or unsecured; to
purchase or otherwise acquire its own bonds or other evidences of its
indebtedness; to purchase, hold, sell and transfer the shares of its own
capital stock as provided by the laws of the State of California.
N. To carry on any business whatsoever, either as principal, agent,
or partnership, which this corporation may deem proper in connection with the
foregoing purposes or otherwise, or which may be calculated directly or
indirectly to promote the interests of this corporation, and to do business
anywhere in the world.
O. To exercise all the powers from time to time granted to a
corporation by law.
The foregoing statement of purposes shall be construed as a statement of
both purposes and powers, and the purposes and powers stated in each clause
shall, except where otherwise expressed, be in
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<PAGE> 6
nowise limited or restricted by reference to or inference from the terms or
provisions of any other clause, but shall be regarded as independent purposes
and powers.
4. The principal office for the transaction of business of this
corporation shall be located in the County of Los Angeles, State of California.
5. This corporation is authorized to issue only one class of shares of
stock; the character of said stock shall be common stock; the total number of
shares shall be one hundred fifty thousand (150,000) shares; the aggregate par
value of said shares shall be one million five hundred thousand dollars
($1,500,000.00) and the par value of each share shall be $10.00 per share.
6. a. There shall be three (3) directors of this corporation.
b. The names and addresses of the persons who are appointed as the
first directors of this corporation are:
Edward T. Martin Florence J. Martin Edward Thomas Martin III
1091 Cuyama Road 1091 Cuyama Road 332 3rd Street
Ojai, California Ojai, California Manhattan Beach, California
IN WITNESS WHEREOF, the undersigned and above named first directors of
this corporation have executed these Articles of Incorporation this 24th day of
November, 1971.
/s/ Edward T. Martin
-----------------------------------------
Edward T. Martin
/s/ Florence J. Martin
-----------------------------------------
Florence J. Martin
/s/ Edward Thomas Martin III
-----------------------------------------
Edward Thomas Martin III
ACKNOWLEDGMENT
STATE OF CALIFORNIA)
)ss.
COUNTY OF VENTURA )
On November 24, 1971, before me, the undersigned, a
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<PAGE> 7
Notary Public for the above County and State, personally appeared EDWARD T.
MARTIN and FLORENCE J. MARTIN, know to me to be two of the persons whose names
are subscribed to the within Articles of Incorporation and acknowledged that
they executed the same.
WITNESS my hand and seal.
/s/ DOROTHY L. WHITE
_________________________________
DOROTHY L. WHITE
Notary Public for said County and
State (SEAL)
My commission expires: March 26, 1974
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)ss.
COUNTY OF LOS ANGELES )
_____________________________
On November 26, , 1971, before me, the undersigned, a Notary
______________________
Public for the above County and State, personally appeared Edward Thomas Martin
III, known to me to be one of the persons whose name is subscribed to the
within Article of Incorporation and acknowledged that he executed the same.
WITNESS my hand and seal.
/s/ CAROL A. BASINGER
_________________________________
Carol A. Basinger
Notary Public for said County and
State (SEAL)
My commission expires: October 1, 1972
-6-
<PAGE> 1
Exhibit 3.101
AMENDED AND RESTATED
BYLAWS
OF
MARTIN & MacFARLANE, INC.,
A California Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. OFFICES.
1.01. Principal Office ............................................ 1
1.02. Other Offices ............................................... 1
ARTICLE II. MEETINGS OF SHAREHOLDERS.
2.01. Place of Meetings ........................................... 1
2.02. Annual Meetings ............................................. 1
2.03. Special Meetings ............................................ 1
2.04. Notice of Shareholders' Meetings ............................ 2
2.05. Manner of Giving Notice ..................................... 2
2.06. Affidavit of Notice ......................................... 3
2.07. Quorum ...................................................... 3
2.08. Adjourned Meeting ........................................... 3
2.09. Voting Generally ............................................ 4
2.10. Cumulative Voting for Directors ............................. 4
2.11. Waiver of Notice or Consent by Absent Shareholders .......... 5
2.12. Shareholder Action by Written Consent Without a Meeting ..... 5
2.13. Shareholder Action Taken by Written Consent Without a
Meeting ..................................................... 6
2.14. Record Dates for Shareholder Notice, Voting and Giving
Consents .................................................... 6
2.15. Proxies ..................................................... 7
2.16. Inspectors of Election ...................................... 7
ARTICLE III. Directors.
3.01. Powers ...................................................... 8
3.02. Number and Qualification of Directors ....................... 8
3.03. Election and Term of Office of Directors .................... 8
3.04. Vacancies ................................................... 8
3.05. Resignation ................................................. 9
3.06. Place of Meetings; Meetings by Telephone .................... 9
3.07. Annual Meetings ............................................. 10
3.08. Other Regular Meetings ...................................... 10
3.09. Special Meetings ............................................ 10
3.10. Notice of Special Meetings .................................. 10
3.11. Quorum ...................................................... 10
3.12. Waiver of Notice ............................................ 11
3.13. Adjournment ................................................. 11
3.14. Notice of Adjournment ....................................... 11
3.15. Action Without Meeting ...................................... 11
3.16. Fees and Compensation of Directors .......................... 11
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE IV. COMMITTEES.
4.01. Committees of Directors ..................................... 11
4.02. Meetings and Action of Committees ........................... 12
ARTICLE V. OFFICERS.
5.01. Officers .................................................... 13
5.02. Election of Officers ........................................ 13
5.03. Subordinate Officers ........................................ 13
5.04. Removal and Resignation of Officers ......................... 13
5.05. Vacancies in Offices ........................................ 13
5.06. Chairman of the Board ....................................... 13
5.07. President ................................................... 14
5.08. Vice Presidents ............................................. 14
5.09. Secretary ................................................... 14
5.10. Chief Financial Officer ..................................... 15
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS.
6.01. Indemnification ............................................. 15
ARTICLE VII. RECORDS AND REPORTS.
7.01. Maintenance and Inspection of Share Register ................ 16
7.02. Maintenance and Inspection of Bylaws ........................ 16
7.03. Maintenance and Inspection of Other Corporate Records ....... 16
7.04. Inspection by Directors ..................................... 17
7.05. Annual Report to Shareholders ............................... 17
7.06. Financial Statements ........................................ 17
7.07. Annual Statement of General Information ..................... 18
ARTICLE VIII. GENERAL CORPORATE MATTERS.
8.01. Record Date for Purposes Other Than Notice and Voting ....... 18
8.02. Checks, Drafts, Evidences of Indebtedness ................... 19
8.03. Corporate Contracts and Instruments, Execution .............. 19
8.04. Certificate of Shares ....................................... 19
8.05. Lost Certificates ........................................... 19
8.06. Representation of Shares of Other Corporations .............. 20
8.07. Construction and Definitions ................................ 20
ARTICLE IX. AMENDMENTS.
9.01. Amendment by Shareholders ................................... 20
9.02. Amendment by Directors ...................................... 20
</TABLE>
ii
<PAGE> 4
AMENDED AND RESTATED
BYLAWS OF
MARTIN & MacFARLANE, INC.
A California Corporation
ARTICLE I. OFFICES.
1.01. Principal Office. The board of directors (the "board") shall
fix the location of the principal executive office of the corporation at any
place within or outside the State of California.
1.02. Other Offices. The board may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to
do business.
ARTICLE II. MEETINGS OF SHAREHOLDERS.
2.01. Place of Meetings. Meetings of shareholders shall be held at
any place within or outside the State of California designated by the board. In
the absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
2.02. Annual Meetings. The annual meeting of shareholders shall be
held each year on a date and at a time designated by the board. The date
designated by the board shall be within ninety (90) days after the end of the
corporation's fiscal year and within fifteen (15) months after the last annual
meeting. At each annual meeting, directors shall be elected and any other proper
business may be transacted.
2.03. Special Meetings. A special meeting of the shareholders may be
called at any time by the board, the chairman of the board, the president or by
one or more shareholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes at the meeting. If a special meeting is
called by anyone other than the board, the request shall be in writing,
specifying the time of the meeting and the general nature of the business
proposed to be transacted. The request shall be
<PAGE> 5
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to one or more of 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 promptly to the
shareholders entitled to vote, in accordance with the provisions of Sections
2.04 and 2.05, that a meeting will be held at the time requested by the person
or persons calling the meeting not less than thirty-five (35) nor more than
sixty (60) days after the receipt of the request. If notice is not given within
twenty (20) days after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing contained in this section shall be
construed as limiting, fixing or affecting the time when a meeting of
shareholders called by action of the board may be held.
2.04. Notice of Shareholders' Meetings. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 2.05
not less than ten (10) nor more than sixty (60) days before the date of the
meeting. Shareholders entitled to notice shall be determined in accordance with
Section 2.14. The notice shall specify the place, date and time 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, 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 names of all nominees whom, at the time of the notice, the
board intends to present for election. If action is proposed to be taken at any
meeting for approval of (i) a contract or transaction in which a director has a
direct or indirect financial interest pursuant to Section 310 of the California
Corporations Code ("Code"), (ii) an amendment of the articles of incorporation
pursuant to Code Section 902, (iii) a reorganization of the corporation pursuant
to Code Section 1201, (iv) voluntary dissolution of the corporation pursuant to
Code Section 1900, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares pursuant to Code Section 2007,
the notice shall also state the general nature of that proposal.
2.05. Manner of Giving Notice. Notice of any meeting of shareholders
shall be given either personally or by first-class mail or telegraphic or other
written communication, charges prepaid, addressed to the shareholder at the
address appearing on the books of the corporation or given by the shareholder to
the corporation for the purpose
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<PAGE> 6
of notice. If no address appears on the corporation's books or has been given,
notice shall be deemed to have been given if sent to that shareholder by
first-class mail or telegraphic or other written communication to the
corporation's principal executive office, or if published at least once in a
newspaper of general circulation in the county where that office is located.
Notice shall be deemed to have been given at the time when delivered personally
or deposited in the mail or sent by telegram or other means of written
communication. If any notice or report addressed to a shareholder at the address
of that shareholder appearing on the books of the corporation is returned by the
United States Postal Service marked to indicate that they are unable to deliver
the document to the shareholder at that address, all future notices or reports
shall be deemed to have been duly given without further mailing if these shall
be available to the shareholder on written demand at the principal executive
office of the corporation for a period of one (1) year from the date of giving
the notice or report.
2.06. Affidavit of Notice. An affidavit of the mailing or other
means of giving any notice of any shareholders' meeting or other document sent
to shareholders shall be executed by the secretary or assistant secretary of the
corporation giving the notice and shall be filed and maintained in the records
of the corporation.
2.07. Quorum. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum 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 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.
2.08. Adjourned Meeting. Any shareholders' annual or special meeting
may be adjourned from time to time by the vote of the majority of the shares
represented at that meeting, either in person or by proxy, whether or not a
quorum is present, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 2.07.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the
adjournment is
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<PAGE> 7
taken, unless a new record date for the adjourned meeting is fixed or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the board shall set a new record date. Notice of
any such adjourned meeting, if required, shall be given to each shareholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.04 and 2.05. At any adjourned meeting, the corporation
may transact any business which might have been transacted at the original
meeting.
2.09. Voting Generally. The shareholders entitled to vote at any
meeting shall be determined in accordance with the provisions of Section 2.14,
subject to the provisions of Code Sections 702 through 704, inclusive, which
relate to voting shares held by a fiduciary, in the name of a corporation or in
joint ownership. 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. If a quorum is present, the affirmative vote of
the majority of the shares represented at the meeting and entitled to vote on
any matter other than the election of directors 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.
2.10. Cumulative Voting for Directors. At a shareholders' meeting at
which directors are to be elected, no shareholder shall be entitled to cumulate
votes (i.e., to cast for any one or more candidates a number of votes greater
than the number of the shareholder's shares), unless the candidates' names have
been placed in nomination prior to commencement of the voting and a shareholder
has given notice at the meeting, prior to commencement of the voting, of the
shareholder's intention to cumulate votes. If any shareholder has given such
notice, every shareholder entitled to vote may cumulate votes for candidates in
nomination and give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which that
shareholder's shares are entitled, or distribute the shareholder's votes on the
same
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<PAGE> 8
principle among any or all of the candidates, as the shareholder thinks fit. The
candidates receiving the highest number of votes, up to the number of directors
to be elected, shall be elected.
2.11. Waiver of Notice or Consent by Absent Shareholders. The
transactions of any meeting of shareholders, either annual or special, 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 either
in person or by proxy and if, either before or after the meeting, each person
entitled to vote who was not present in person or by proxy signs a written
waiver of notice, a consent to holding the meeting or an approval of the
minutes. 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,
except that if action is taken or proposed to be taken for approval of any of
those matters specified in the last sentence of Section 2.04, the waiver or
consent shall state the general nature of the proposal. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Attendance by a shareholder at a meeting shall also constitute a waiver
of notice of that meeting, except when the shareholder 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 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 which were not so included if that
objection is expressly made at the meeting.
2.12. Shareholder Action by Written Consent Without a Meeting. Any
action which may be taken at any annual or special meeting of shareholders 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 that action at a meeting at which all shares entitled to
vote on that action were present and voted.
In the case of election of directors, such a consent shall be effective
only if signed by the holders of all outstanding shares entitled to vote for the
election of directors; provided, however, that a director may be elected at any
time to fill a vacancy on the board of directors that has not been filled by the
directors by the written
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<PAGE> 9
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors.
All such consents shall be filed with the secretary of the corporation
and shall be maintained in the corporate records. Any shareholder or other
authorized person giving a written consent may revoke the consent by a writing
received by the secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary.
2.13. Notice of Action Taken by Written Consent Without a Meeting.
If the consents of all shareholders entitled to vote have not been solicited in
writing, and if the unanimous written consent of all such shareholders shall not
have been received, the secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting to those shareholders
entitled to vote who have not consented in writing. This notice shall be given
in the manner specified in Section 2.05. In the case of approval of (i)
contracts or transactions in which a director has a direct or indirect financial
interest, pursuant to Code Section 310, (ii) indemnification of agents of the
corporation, pursuant to Code Section 317, (iii) a reorganization of the
corporation, pursuant to Code Section 1201, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Code Section 2007, the notice shall be given at least ten
(10) days before the consummation of any action authorized by that approval.
2.14. Record Dates for Shareholder Notice, Voting and
Giving Consents. For purposes of determining the shareholders entitled to notice
of any meeting or to vote or entitled to give consent to corporate action
without a meeting, the board may fix a record date, in advance, which shall be
not more than sixty (60) days nor less than ten (10) days before the date of any
such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only shareholders of record on the date so fixed are
entitled to notice and to vote or to give consents, 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 does not
fix a record date:
(a) 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
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day next preceding the day on which notice is given or, if notice is waived, at
the close of business on the business day preceding the day on which the meeting
is held.
(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 sixtieth (60th) day before the date
of such other action, whichever is later.
2.15. 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 which 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 a
subsequent proxy executed by or attendance at the meeting and voting in person
by the person executing the proxy; 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 eleven (11) months from the date of the proxy,
unless otherwise provided in the proxy. The revocability of a proxy that states
on its face that it is irrevocable shall be governed by the provisions of Code
Sections 705 (e) and 705 (f).
2.16. Inspectors of Election. Before any meeting of shareholders,
the board may appoint any persons other than nominees for office to act as
inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any shareholder or a shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
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inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall appoint a person to
fill that vacancy.
These inspectors shall: (a) 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 authenticity, validity and effect of proxies; (b)
receive votes, ballots or consents; (c) hear and determine all challenges and
questions in any way arising in connection with the right to vote; (d) count and
tabulate all votes or consents; (e) determine when the polls shall close; (f)
determine the result; and (g) do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
ARTICLE III. DIRECTORS.
3.01. Powers. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board.
3.02. Number and Qualification of Directors. The authorized number
of directors shall be nine (9) until changed by an amendment to the articles of
incorporation or by an amendment to this bylaw adopted by the vote or written
consent of holders of a majority of the outstanding shares entitled to vote.
3.03. Election and Term of Office of Directors. Directors shall be
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
3.04. Vacancies. A vacancy in the board shall be deemed to exist if:
(a) a director dies, resigns or is removed by the shareholders or an appropriate
court, as provided in Code Sections 303 or 304; (b) the board declares vacant
the office of a director who has been convicted of a felony or declared of
unsound mind by an order of court; (c) the authorized number of directors is
increased; or
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(d) at any shareholders' meeting at which one (1) or more directors are elected
the shareholders fail to elect the full authorized number of directors to be
voted for at that meeting.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board, unless the
notice specifies a later effective date. If the resignation is effective at a
future time, the board may elect a successor to take office when the resignation
becomes effective.
Except for a vacancy caused by the removal of a director, vacancies on
the board may be filled by a majority of the directors then in office, whether
or not they constitute a quorum, or by a sole remaining director. A vacancy on
the board caused by the removal of a director may be filled only by the
shareholders, except that a vacancy created when the board declares the office
of a director vacant as provided in clause (b) of the first paragraph of this
Section 3.04 may be filled by the board.
The shareholders may elect a director at any time to fill a vacancy not
filled by the board.
The term of office of a director elected to fill a vacancy shall run
until the next annual meeting of the shareholders, and such a director shall
hold office until a successor is elected and qualified.
3.05. Resignation. Any director may resign effective on giving
written notice to the chairman of the board, the president, the secretary or the
board, unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
board may elect a successor to take office when the resignation becomes
effective. No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
3.06. Place of Meetings; Meetings by Telephone. Regular meetings of
the board may be held at any place within or outside the State of California as
designated from time to time by resolution of the board. In the absence of a
designation, regular meetings shall be held at the principal executive office of
the corporation. Special meetings of the board shall be held at any place within
or outside the State of California designated in the notice of the meeting or,
if not stated in the notice or there is no
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notice, at the principal executive office of the corporation. Any meeting,
regular or special, may be held by conference telephone or similar communication
equipment, provided all directors participating in the meeting can hear one
another, and all such directors shall be deemed to be present in person at the
meeting.
3.07. Annual Meetings. Immediately following each annual meeting of
shareholders, the board shall hold a regular meeting for the purpose of
organization, election of officers and other business as desired. Notice of this
meeting shall not be required.
3.08. Other Regular Meetings. Other regular meetings of the board
shall be held without call at such time as shall from time to time be fixed by
the board. Such regular meetings may be held without notice.
3.09. Special Meetings. Special meetings of the board may be called
for any purpose at any time by the chairman of the board, the president, any
vice president, the secretary or any two (2) directors.
3.10. Notice of Special Meetings. Special meetings shall be held on
four (4) days' notice by mail or forty-eight (48) hours' notice delivered
personally or by telephone or telegraph. Oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. Written notice, if used, shall be
addressed to each director at the address shown on the corporation's records.
The notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the corporation.
3.11. Quorum. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.13. Every 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 regarded as the act of the board, subject to the provisions of Code Section
310 as to approval of contracts or transactions in which a director has a direct
or indirect material financial interest, Code Section 311 as to appointment of
committees and Code Section 317(e) as to indemnification of directors. 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 that meeting.
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3.12. Waiver of Notice. The actions of any meeting of the board,
however called and noticed or wherever held, shall be as valid as though
transacted at a meeting 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. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting. Notice
of a meeting shall also be deemed given to any director who attends the meeting
without protesting before or at its commencement the lack of notice to that
director.
3.13. Adjournment. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
3.14. Notice of Adjournment. Notice of the time and place of
resuming a meeting which has been adjourned need not be given unless the meeting
is adjourned for more than twenty-four (24) hours, in which case notice of the
time and place shall be given before the time set for resuming the adjourned
meeting, in the manner specified in Section 3.10, to the directors who were not
present at the time of the adjournment.
3.15. Action Without Meeting. Any action required or permitted to be
taken by the board may be taken without a meeting, if all members of the board
shall individually or collectively consent in writing to that action. Any action
by written consent shall have the same force and effect as a unanimous vote of
the board. All written consents shall be filed with the minutes of the
proceedings of the board.
3.16. Fees and Compensation of Directors. Directors and members of
committees may receive such compensation for their services and such
reimbursement of expenses as may be fixed by the board. This section shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
ARTICLE IV. COMMITTEES.
4.01. Committees of Directors. The board may, by resolution adopted
by a majority of the authorized number
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of directors, designate one or more committees, each consisting of two (2) 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 committee meeting. Any committee, to the extent provided in
the resolutions of the board, shall have all the authority of the board, except
with respect to:
(a) The approval of any action which, under the Code, also requires
approval of the shareholders or 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, except at a rate or in a
periodic amount or within a price range determined by the board; or
(g) The appointment of any other committees of the board or their
members.
4.02. Meetings and Action of Committees. Meetings and action of
committees shall be governed by and held and taken in accordance with the
provisions of Section 3.06 as to place of meetings, Section 3.08 as to regular
meetings, Section 3.09 as to special meetings, Section 3.10 as to notice of
special meetings, Section 3.11 as to quorum, Section 3.12 as to waiver of
notice, Section 3.13 as to adjournment and Section 3.15 as to action without a
meeting, with such changes in the context of those sections as are necessary to
substitute the committee and its members for the board and its members, except
that the time of regular meetings of committees may be determined either by
resolution of the board or by resolution of the committee; special meetings of
committees may also be called by resolution of the board; and notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board may adopt
rules for the governance of any committee not inconsistent with the provisions
of these bylaws.
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ARTICLE V. OFFICERS.
5.01. Officers. The officers of the corporation shall be a
president, a secretary and a chief financial officer. The corporation may also
have, at the discretion of the board, a chairman of the board, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers
and such other officers as may be appointed in accordance with the provisions of
Section 5.03. Any number of offices may be held by the same person.
5.02. Election of Officers. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section
5.03 or 5.05, shall be chosen by the board and each shall serve at the pleasure
of the board, subject to the rights, if any, of an officer under any contract of
employment.
5.03. Subordinate Officers. The board may appoint and may empower
the president to 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 bylaws or as the board or the
president may from time to time determine.
5.04. Removal and Resignation of Officers. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the board, at any regular or special meeting of
the board or, except in the case of an officer chosen by the board, by any
officer upon whom such power of removal may be conferred by the board.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.05. Vacancies in Offices. 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 appointment to that office.
5.06. Chairman of the Board. The chairman of the board, if such an
officer is elected, shall, if present,
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preside at meetings of the board and exercise and perform such other powers and
duties as from time to time may be assigned to the chairman by the board or
prescribed by the bylaws. If there is no president, the chairman of the board
shall in addition be the chief executive officer of the corporation and shall
have the powers and duties prescribed in Section 5.07.
5.07. President. Subject to such supervisory powers as may be given
by the board 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, have general supervision, direction and
control of the business and the officers of the corporation. The president 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. The president
shall have the general powers and duties of management usually vested in the
office of the president of a corporation, and shall have such other powers and
duties as may be prescribed by the board or the bylaws.
5.08. Vice Presidents. In the absence or disability of the
president, the vice presidents, if any, in order of their rank as fixed by the
board or if not ranked, a vice president designated by the board, 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 by the board, bylaws, president or chairman of the board.
5.09. Secretary. The secretary shall keep or cause to be kept at the
principal executive office or such other place as the board may direct, a book
of minutes of all meetings and actions of directors, committees of directors and
shareholders, with the time and place of holding the meeting, whether regular or
special and, if special, how authorized, the notice given, the names of those
present at directors' meetings or committee meetings, the number of shares
present or represented at shareholders' meetings and the proceedings.
The secretary shall keep or cause to be kept at the principal executive
office or at the office of the corporation's transfer agent or registrar, as
determined by resolution of the board, a share register or duplicate share
register, showing the names of all shareholders and their addresses, the number
and classes of shares held by each,
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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 meetings of
the shareholders and of the board required by the bylaws or by law to be given,
and shall have such other powers and perform such other duties as may be
prescribed by the board or by the bylaws.
5.10. Chief Financial Officer. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall: (a) 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; (b) disburse the funds of the
corporation as may be ordered by the board; (c) render to the president or the
board whenever requested an account of all transactions conducted as chief
financial officer and of the financial condition of the corporation; and (d)
have other powers and perform such other duties as may be prescribed by the
board or the bylaws.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS.
6.01. Indemnification. The corporation shall, to the maximum extent
permitted by the California General Corporation Law, have the 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 that any such person is or was an agent of the
corporation. For purposes of this section, an "agent" of the corporation
includes any person who is or was a director, officer, employee or other agent
of the corporation, or 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 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.
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ARTICLE VII. RECORDS AND REPORTS.
7.01. Maintenance and Inspection of Share Register. The corporation
shall keep at its principal executive office, or at such other place as
designated by resolution of the board, a record of the names and addresses
of all shareholders and the number and class of shares held by each. A
shareholder or shareholders of the corporation holding at least five percent
(5%) in the aggregate of the outstanding voting shares of the corporation may
(i) inspect and copy the records of shareholders' names and addresses and
shareholdings during usual business hours on five (5) days' prior written demand
on the corporation, or (ii) obtain, on written demand and on the tender of the
usual charges for such list, a list of the shareholders' names and addresses who
are entitled to vote for the election of directors and their shareholdings as of
the most recent record dates 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 on or before the later of five (5) 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.
7.02. Maintenance and Inspection of Bylaws. The corporation shall
keep at its principal executive office the original or a copy of these bylaws as
amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
7.03. Maintenance and Inspection of Other Corporate Records. The
accounting books and records and minutes of proceedings of the shareholders, the
board and any committees of the board shall be kept at such place or places
designated by the board or, in the absence of such designation, at the principal
executive office of the corporation or at such other place or places as
designated by resolution of the board. The minutes shall be kept in written form
and the accounting books and records shall be kept in either written form or in
a form capable of being converted into written form. The minutes and accounting
books and records shall be open to inspection upon the written demand
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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 of the corporation.
7.04. 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.
7.05. Annual Report to Shareholders. The annual report to
shareholders referred to in Code Section 1501 is expressly dispensed with, but
nothing herein shall be interpreted as prohibiting the board from issuing annual
or other periodic reports to the shareholders as the board considers
appropriate.
7.06. Financial Statements. A copy of any annual financial statement
and any income statement of the corporation for each quarterly or other period
of each fiscal year and any accompanying balance sheet of the corporation as of
the end of each such period that has been prepared by the corporation shall be
kept in the principal executive office of the corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any statement or a copy shall be mailed
to any such shareholder.
If a shareholder or shareholders holding at least five percent (5%) of
the outstanding shares of any class of stock of the corporation makes a written
request to the corporation for an income statement of the corporation for the
three (3) -month, six (6) -month or nine (9)-month period of the then current
fiscal year ended more than thirty (30) days before the date of the request and
a balance sheet of the corporation as of the end of that period, the chief
financial officer shall cause that statement to be prepared, if not already
prepared, and shall deliver personally or mail that statement to the person
making the request within thirty (30) days after the receipt of the request.
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If the corporation has not sent to the shareholders its annual report
for the last fiscal year, this report shall likewise be delivered or mailed to
the shareholder or shareholders within thirty (30) days after the request. The
corporation shall also, on the written request of any shareholder, mail to the
shareholder a copy of the last annual, semi-annual or quarterly income statement
which it has prepared and a balance sheet as of the end of that period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
7.07. Annual Statement of General Information. The corporation shall
each year file with the Secretary of the State of California, 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 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 Code Section 1502.
ARTICLE VIII. GENERAL CORPORATE MATTERS.
8.01. Record Date for Purposes Other Than Notice and Voting. For
purposes of determining the shareholders 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 action other than action by
shareholders by written consent without a meeting, the board may fix a record
date, in advance, which shall not be more than sixty (60) nor less than ten (10)
days before any such action, and in that case only shareholders of record on the
date so fixed are entitled to receive the 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 as
fixed, except as otherwise provided in the California General Corporation Law.
If the board does not fix a record date, the record date for
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determining shareholders for any such purpose shall be at the close of business
on the day on which the board adopts the applicable resolution or the sixtieth
(60th) day before the date of that action, whichever is later.
8.02. Checks, Drafts, Evidences of Indebtedness. 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 by
resolution of the board.
8.03. Corporate Contracts and Instruments, Execution. The board,
except as otherwise provided in these bylaws, may authorize any officer,
officers, agent or agents to enter into any contract or execute any instrument
in the name of and on behalf of the corporation. This authority may be general
or confined to specific instances. Unless so authorized or ratified by the board
or within the agency power of an officer, 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 or to render it liable for any purpose or for
any amount.
8.04. Certificate of Shares. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of the shares are fully paid. The board may authorize the
issuance of certificates for shares as partly paid provided that these
certificates shall state the amount of the consideration to be paid for them and
the amount actually paid. All certificates shall be signed in the name of the
corporation by the chairman of the board or vice chairman of the board, or the
president or vice president, and by the chief financial officer or an assistant
treasurer or the secretary or an assistant secretary, certifying the number of
shares and the class or series of shares owned by the shareholder. Any or all of
the signatures on the certificate may be facsimile. If any officer who has
signed or whose facsimile signature has been placed on a certificate has ceased
to be that officer before that certificate is issued, it may be issued by the
corporation with the same effect as if that person were an officer at the date
of issuance.
8.05. Lost Certificates. Except as provided in this section, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the corporation and cancelled at the same time. The
board may, in case any share certificate or certificate for any other security
is lost, stolen or
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destroyed, authorize the issuance of a replacement certificate on such terms and
conditions as the board may require, including provision for indemnification of
the corporation secured by a bond or other adequate security sufficient to
protect the corporation against any claim that may be made against it,
including any expense or liability, on account of the alleged loss, theft or
destruction of the certificate or the issuance of the replacement certificate.
8.06. Representation of Shares of Other Corporations. The chairman
of the board, the president or any vice president, or any other person
authorized by resolution of the board or by any of the foregoing designated
officers is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority granted in this section includes the
authority to execute a proxy in the name of the corporation for purposes of
voting the shares.
8.07. Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the
Code Sections 100 through 195 shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular and the term "person"
includes both a corporation and a natural person.
ARTICLE IX. AMENDMENTS.
9.01. Amendment by Shareholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote.
9.02. Amendment by Directors. Subject to the rights of the
shareholders as provided in Section 9.01, bylaws, other than a bylaw or an
amendment of a bylaw changing the authorized number of directors, may be
adopted, amended or repealed by the board.
-20-
<PAGE> 24
CERTIFICATION OF SECRETARY
I certify that:
1. I am the presently elected and acting secretary of MARTIN &
MacFARLANE, INC. A California Corporation; and
2. The foregoing bylaws are the bylaws of the corporation as
adopted by the directors of the corporation on Jan. 25, 1985.
/s/ David B. Weyrich
---------------------------------------
David B. Weyrich, Secretary
<PAGE> 1
EXHIBIT 3.102
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
KATZ MEDIA CORPORATION
* * * * *
FIRST: The name of the Corporation is Katz Media Corporation.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of its registered agent at such 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 the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100, and the par value of each such share is $.01,
amounting in the aggregate to $1.
FIFTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
SEVENTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
<PAGE> 2
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE SEVENTH
shall also include the right to be paid by the Corporation for the expenses
incurred in connection with any such proceeding in advance of its final
disposition to the fullest extent authorized by Delaware Law. The right to
indemnification conferred in this ARTICLE SEVENTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE SEVENTH shall not be
exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
SEVENTH, in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
EIGHTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE SEVENTH,
all rights and powers conferred herein on
2
<PAGE> 3
stockholders, directors and officers, if any, are subject to this reserved
power.
3
<PAGE> 4
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
KATZ ACQUISITION CORP.
FIRST: The name of the corporation is KATZ ACQUISITION CORP. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of Kent,
Delaware 19901. The Prentice-Hall Corporation System, Inc., is the Corporation's
registered agent at that address.
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.
FOURTH: The Corporation shall have authority to issue One Thousand (1,000)
shares of Common Stock, par value $1.00 per share.
FIFTH: The Board of Directors shall have the power to make, alter, or
repeal the bylaws of the Corporation, subject to the right of the stockholders
of the Corporation to alter or repeal any bylaw made by the Board of Directors.
SIXTH: The Corporation shall, to the fullest extent permitted by the
provisions of the General Corporation Law of Delaware, as now or hereafter in
effect, indemnify all persons whom it may indemnify under such provisions. The
indemnification provided by this section shall not limit or exclude any rights,
indemnities or limitations of liability to which any person may be entitled,
whether as a matter of law, under the bylaws of the Corporation, by agreement,
vote of the stockholders or disinterested directors of the Corporation or
otherwise.
SEVENTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of Delaware, as the same may
be amended and supplemented from time to time.
EIGHTH: The election of directors of the Corporation need not be by written
ballot, unless the bylaws of the Corporation otherwise provide.
<PAGE> 5
NINTH: Andrea Johnston is the Sole Incorporator and her mailing address is
c/o Battle Fowler, 280 Park Avenue, New York, New York 10017.
IN WITNESS WHEREOF, the undersigned has set her hand this 10th day of
January, 1990.
/s/ Andrea Johnston
------------------------
Andrea Johnston
Sole Incorporator
c/o Battle Fowler
280 Park Avenue
New York, New York 10017
<PAGE> 6
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"KATZ ACQUISITION CORP.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF
APRIL, A.D. 1990, AT 11:30 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7191893
DATE: 07-26-94
2218896 8100
944138064
<PAGE> 7
RESTATED CERTIFICATE OF INCORPORATION
OF
KATZ ACQUISITION CORP.
It is hereby certified that:
1. The present name of the Corporation (the "Corporation") is KATZ
ACQUISITION CORP., which is the name under which the Corporation was originally
incorporated; and the date of filing the original Certificate of Incorporation
of the Corporation with the Secretary of State of the State of Delaware is
January 10, 1990.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Articles THIRD through NINTH thereof and by substituting
in lieu thereof of new Articles THIRD through NINTH which are set forth in the
Restated Certificate hereinafter provided for.
3. The provisions of the Certificate of Incorporation of the
Corporation as herein amended, are hereby restated and integrated in the single
instrument which is hereinafter set forth, and which is entitled Restated
Certificate of Incorporation of KATZ ACQUISITION CORP. without any further
amendments other than the amendments herein certified and without any
discrepancy between the provisions of the Certificate of Incorporation and the
provisions of the said single instrument hereinafter set forth.
4. The Corporation has not received payment for any of its stock. The
amendments and the restatement of the Certificate of Incorporation herein
certified have been duly adopted by the sole incorporator in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
The Certificate of Incorporation of the Corporation, as amended and
restated herein, shall read in its entirety as follows:
"RESTATED CERTIFICATE OF INCORPORATION
OF
KATZ ACQUISITION CORP.
FIRST: The name of the Corporation is KATZ ACQUISITION CORP. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of
Kent, Delaware 19901. The Prentice-
<PAGE> 8
Hall Corporation Systems, Inc. is the Corporation's registered agent at that
address.
THIRD: Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may now or hereafter be organized
under the General Corporation Law of the State of Delaware.
FOURTH: Election and Removal of Board of Directors. Elections of
members of the Board of Directors of the Corporation need not be by written
ballot unless the by-laws of the Corporation so provide. The stockholders at any
time may remove any or all members of the Board of Directors of the Corporation,
with or without cause.
FIFTH: Stock. The Corporation shall have authority to issue Six
Million (6,000,000) shares, consisting of Three Million (3,000,000) shares
designated as the "Common Stock", of the par value of $.001 per share, and Three
Million (3,000,000) shares designated as the "Preferred Stock", in one or more
series, of the par value of $.001 per share. The Board of Directors shall have
the power to designate by resolution the powers, preferences and relative
rights, and the qualifications, limitations or restrictions with respect to the
Common Stock and each series of the Preferred Stock.
SIXTH: By-Laws. The Board of Directors of the Corporation from time to
time may make, alter or repeal the by-laws of the Corporation, except as such
power may be limited by any one or more by-laws adopted by the stockholders.
SEVENTH: Indemnification. The Corporation shall indemnify any and all
persons who it shall have the power to indemnify from and against any and all
liabilities, damages, amounts paid in settlement, costs and expenses, including
attorneys' fees incurred in connection with any threatened, pending or completed
claim, action, suit, proceeding or investigation arising out of or pertaining to
any action or omission occurring prior to or after the date of this Certificate
of Incorporation, to the full extent permitted by the Delaware General
Corporation Law, as the same now exists or may hereafter be amended.
EIGHTH: Limitation on Director's Liability. No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of his or her fiduciary duty as a director;
provided, however, that nothing in this Article EIGHTH shall eliminate or limit
the liability of any director (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts of omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174
2
<PAGE> 9
of the General Corporation Law of the State of Delaware or (iv) for any
transaction from which the director derived an improper personal benefit."
IN WITNESS WHEREOF, I have executed this Certificate this 26th day of
April, 1990.
/s/ Andrea Johnston
-------------------
Andrea Johnston
Incorporator
3
<PAGE> 10
PAGE 1
State of Delaware
Office of the Secretary of State
________________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "KATZ ACQUISITION CORP.", FILED IN THIS OFFICE ON THE THIRTIETH
DAY OF APRIL, A.D. 1990, AT 8:30 O'CLOCK A.M.
[Seal of the /s/ Edward J. Freel
State of Delaware] ---------------------------------------
Edward J. Freel, Secretary of State
2218896 8100 AUTHENTICATION: 7191892
944138064 DATE: 07-26-94
<PAGE> 11
PAGE 1
State of Delaware
Office of the Secretary of State
________________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "KATZ ACQUISITION CORP.", CHANGING ITS NAME FROM "KATZ ACQUISITION CORP." TO
"THE KATZ CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-FIFTH DAY OF
SEPTEMBER, A.D. 1992, AT 9 O'CLOCK A.M.
[Seal of the /s/ Edward J. Freel
State of Delaware] ---------------------------------------
Edward J. Freel, Secretary of State
22188968 8100 AUTHENTICATION: 7191888
944138064 DATE: 07-26-94
<PAGE> 12
FIRST AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
KATZ ACQUISITION CORP.
The undersigned, President and Secretary, respectively, of Katz
Acquisition Corp., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, do hereby certify:
1. a. The present name of the corporation (hereinafter the "Corporation")
is Katz Acquisition Corp.;
b. The date of filing of the original certificate of incorporation of
the Corporation with the Secretary of State of Delaware is January 10, 1990.
2. The certificate of incorporation of the Corporation, as restated, is
hereby amended as hereinafter set forth.
3. The amendment of the Restated Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
FIRST: ARTICLE FIRST is hereby amended to read in its entirety as follows:
"The name of the Corporation is The Katz Corporation (the
"Corporation")."
SECOND: The first sentence of Section 6(a) of the Certificate of
Designation of the 15% Preferred Stock is amended by deleting the words "on any
Dividend Payment Date" and inserting in lieu thereof the words "at any time",
such that such sentence as amended shall read in its entirety as follows:
"Subject to the rights of any Senior Stock and the provisions of
Section 3 hereof, the shares of 15% Stock may be redeemed, at the
option of the Corporation, in whole or from time to time in part, at
any time, at the following redemption prices (expressed in percentages
of the Liquidation Price as of such Dividend Payment Date)."
THIRD: The first sentence of Section 6(a) of the Certificate of
Designation of the 25% Preferred Stock is amended by deleting the words "on any
Dividend Payment Date" and
<PAGE> 13
inserting in lieu thereof the words "at any time," such that such sentence as
amended shall read in its entirety as follows:
"Subject to the rights of any Senior Stock and the provisions of
Section 3 hereof, the shares of 25% Stock may be redeemed, at the
option of the Corporation, in whole or from time to time in part, at
any time, at the following redemption prices (expressed in percentages
of the Liquidation Price as of such Dividend Payment Date)."
Dated: September 24, 1992
/s/ Peter R. Goulazian
-------------------------------------
Peter R. Goulazian
President
ATTEST:
/s/ Arnold Sheiffer
-------------------------------------
Arnold Sheiffer
Secretary
<PAGE> 14
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "THE KATZ CORPORATION", CHANGING ITS NAME FROM "THE KATZ CORPORATION" TO
"KATZ MEDIA CORPORATION", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF JUNE,
A.D. 1994, AT 3:30 O'CLOCK P.M.
/s/ Edward J. Freel
[DELAWARE SECRETARY'S OFFICE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7191887
DATE: 07-26-94
2218896 8100
944138064
<PAGE> 15
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:30 PM 06/20/1994
944111638 - 2218896
SECOND AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
THE KATZ CORPORATION
Under Section 242 of the General Corporation Law
-------------
The undersigned, Executive Vice President and Assistant Secretary,
respectively, of The Katz Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware, do
hereby certify that:
1. The name of the corporation is The Katz Corporation (the
"Corporation"). The name under which the Corporation was originally
incorporated was Katz Acquisition Corp.
2. The date of filing of the original Certificate of Incorporation of
the Corporation with the Secretary of State of Delaware is January 10, 1990.
3. The Certificate of Incorporation of the Corporation, as restated, is
hereby amended by striking Article FIRST thereof and by substituting in lieu of
said Article the following new Article FIRST:
"FIRST: The name of the Corporation is Katz Media Corporation
(the "Corporation")."
Signed and attested to on June 17, 1994.
THE KATZ CORPORATION
By: /s/ Arnold Sheiffer
---------------------------
Arnold Sheiffer
Executive Vice President
Attest:
/s/ Harvey Fenster
- -----------------------------------
Harvey Fenster, Assistant Secretary
<PAGE> 1
EXHIBIT 3.103
BY-LAWS
OF
THE KATZ CORPORATION f/k/a
KATZ ACQUISITION CORP.
(A DELAWARE CORPORATION)
ARTICLE I - OFFICES
The office of the Corporation shall be located in the City and State
designated in the Certificate of Incorporation. The Corporation may also
maintain offices at such other places within or without the United States as
the Board of Directors may, from time to time, determine.
ARTICLE II - MEETING OF STOCKHOLDERS
SECTION 1 - ANNUAL MEETINGS.
The annual meeting of the stockholders of the Corporation shall be held
within five months after the close of the fiscal year of the Corporation, for
the purpose of electing directors, and transacting such other business as may
properly come before the meeting.
SECTION 2 - SPECIAL MEETINGS.
Special meetings of the stockholders may be called at any time by the
Board of Directors or by the President, and shall be called by the President or
the Secretary at the written request of holders of ten per cent (10%) of
the shares then outstanding and entitled to vote thereat, or as otherwise
required by statute.
SECTION 3 - PLACE OF MEETINGS.
All meetings of stockholders shall be held at the principal office of the
Corporation, or at such other places as shall be designated in the notices or
waivers of notice of such meetings.
SECTION 4 - NOTICE OF MEETINGS.
(a) Except as otherwise provided by statute or the stockholders' agreement
dated April 27, 1990, by and among the Corporation and certain purchasers of the
Corporation's securities (such agreement and any subsequent amendments thereof
being hereinafter collectively referred to as the "Stockholders' Agreement"),
written notice of each meeting of stockholders, whether annual or special,
stating the time when and place where
<PAGE> 2
it is to be held, shall be served either personally or by mail, not less
than ten or more than sixty days before the meeting, upon each stockholder of
record entitled to vote at such meeting, and to any other stockholder to whom
the giving of notice may be required by law. Notice of a special meeting shall
also state the purpose or purposes for which the meeting is called, and shall
indicate that it is being issued by, or at the direction of, the person or
persons calling the meeting. If, at any meeting, action is proposed to be taken
that would, if taken, entitle stockholders to receive payment for their shares
pursuant to statute, the notice of such meeting shall include a statement of
that purpose and to that effect. If mailed, such notice shall be directed to
each such stockholder at his address, as it appears on the records of the
stockholders of the Corporation, unless he shall have previously filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case, it shall be mailed to the address
designated in such request.
(b) Subject to the Stockholders' Agreement, notice of any meeting need not
be given to any person who may become a stockholder of record after the mailing
of such notice and prior to the meeting, or to any stockholder who attends such
meeting, in person or by proxy, or to any stockholder who, in person or by
proxy, submits a signed waiver of notice either before or after such meeting.
Notice of any adjourned meeting of stockholders need not be given, unless
otherwise required by statute.
SECTION 5 - QUORUM.
(a) Except as otherwise provided herein, by the Stockholders' Agreement,
by statute, or in the Certificate of Incorporation (such Certificate and any
amendments thereof being hereinafter collectively referred to as the
"Certificate of Incorporation"), at all meetings of stockholders of the
Corporation, the presence at the commencement of such meetings in person or by
proxy of stockholders holding of record a majority of the total number of
shares of the Corporation then issued and outstanding and entitled to vote,
shall be necessary and sufficient to constitute a quorum for the transaction of
any business. The withdrawal of any stockholder 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) Except as otherwise provided by the Stockholders' Agreement, despite
the absence of a quorum at any annual or special meeting of stockholders, the
stockholders, by a majority of the votes cast by the holders of shares entitled
to vote thereon, may adjourn the meeting. At any such adjourned meeting at which
a quorum is present, any business may be transacted at the meeting as originally
called if a quorum had been present.
-2-
<PAGE> 3
Section 6 - Voting.
(a) Except as otherwise provided by statute, by the Stockholders'
Agreement or by the Certificate of Incorporation, any corporate action, other
than the election of directors, to be taken by vote of the stockholders, shall
be authorized by a majority of votes cast at a meeting of stockholders by the
holders of shares entitled to vote thereon.
(b) Except as otherwise provided by statute, by the Stockholders'
Agreement or by the Certificate of Incorporation, at each meeting of
stockholders, each holder of record of stock of the Corporation entitled to
vote thereat, shall be entitled to one vote for each share of stock registered
in his name on the books of the Corporation.
(c) Each stockholder entitled to vote or to express consent or dissent
without a meeting, may do so by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
stockholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the person executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records
of the Corporation.
(d) Any resolution in writing, signed by all of the stockholders entitled
to vote thereon, shall be and constitute action by such stockholders to the
effect therein expressed, with the same force and effect as if the same had
been duly passed by unanimous vote at a duly called meeting of stockholders and
such resolution so signed shall be inserted in the Minute Book of the
Corporation under its proper date.
Section 7 - Adjournment.
At any meeting of stockholders of the Corporation, if less than a quorum
be present, a majority of the stockholders entitled to vote thereat, present in
person or 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. Any business may be transacted at the adjourned meeting which
might have been transacted at the meeting originally noticed. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date, as provided for in Section 4 of Article V of these By-Laws, 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.
-3-
<PAGE> 4
ARTICLE III - BOARD OF DIRECTORS
Section 1 - Number, Election and Term of Office.
(a) Subject to the provisions of the Stockholders' Agreement, the number
of the directors of the Corporation shall not be less than three (3) or more
than nine (9), unless and until otherwise determined by vote of a majority of
the entire Board of Directors or as required by statute.
(b) Except as may otherwise be provided in the Stockholders' Agreement or
in the Certificate of Incorporation, the members of the Board of Directors of
the Corporation, who need not be stockholders, shall be elected by a majority
of the votes cast at a meeting of stockholders, by the holders of shares,
present in person or by proxy, entitled to vote in the election.
(c) Subject to the provisions of the Stockholders' Agreement, each
director shall hold office until the annual meeting of the stockholders next
succeeding his election, and until his successor is elected and qualified, or
until his prior death, resignation or removal.
Section 2 - Duties and Powers.
The Board of Directors shall be responsible for the control and management
of the affairs, property and interests of the Corporation, and may exercise all
powers of the Corporation, except as are in the Stockholders' Agreement, the
Certificate of Incorporation or by statute expressly conferred upon or reserved
to the stockholders.
Section 3 - Annual and Regular Meeting; Notice.
(a) A regular annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the stockholders, at the place of
such annual meeting of stockholders.
(b) The Board of Directors, from time to time, may provide by resolution
for the holding of other regular meetings of the Board of Directors, and may
fix the time and place thereof.
(c) Subject to the Stockholders' Agreement, notice of any regular meeting
of the Board of Directors shall not be required to be given and, if given, need
not specify the purpose of the meeting; provided, however, that in case the
Board of Directors shall fix or change the time or place of any regular
meeting, notice of such action shall be given to each director who shall not
have been present at the meeting at which such
-4-
<PAGE> 5
action was taken within the time limited, and in the manner set forth in
paragraph (b) Section 4 of this Article III, with respect to special meetings,
unless such notice shall be waived in the manner set forth in paragraph (c) of
such Section 4.
Section 4 - Special Meetings: Notice.
a. Subject to the Stockholders' Agreement, special meetings of the Board
of Directors shall be held whenever called by the President or by one of the
directors, at such time and place as may be specified in the respective notices
or waivers of notice thereof.
(b) Except as otherwise required by statute or by the Stockholders'
Agreement, notice of special meetings shall be called directly to each
director, addressed to him at his residence or usual place of business, at
least two (2) days before the day on which the meeting is to be held, or shall
be sent to him at such place by telegram, radio or cable, or shall be delivered
to him personally or given to him orally, not later than the day before the day
on which the meeting is to be held. A notice, or waiver of notice, except as
required by Section 8 of this Article III, need not specify the purpose of the
meeting.
(c) Notice of any special meeting shall not be required to be given to any
director who shall attend such meeting without protesting prior thereto or at
its commencement, the lack of notice to him, or who submits a signed waiver of
notice, whether before or after the meeting. Notice of any adjourned meeting
shall not be required to be given.
Section 5 - Chairman.
At all meetings of the Board of Directors, the Chairman of the Board, if
any and if present, shall preside. If there shall be no Chairman, or he shall
be absent, then the President shall preside, and in his absence, a Chairman
chosen by the directors shall preside.
Section 6 - Quorum and Adjournments.
(a) At all meetings of the Board of Directors, the presence of a majority
of the entire Board shall be necessary and sufficient to constitute a quorum
for the transaction of business, except as otherwise provided by law, by the
Stockholders' Agreement, by the Certificate of Incorporation, or by these
By-Laws.
(b) Subject to the Stockholders' Agreement, a majority of the directors
present at the time and place of any regular or special meeting, although less
than a quorum, may adjourn the
-5-
<PAGE> 6
same from time to time without notice, until a quorum shall be present.
Section 7 - Manner of Acting.
(a) At all meetings of the Board of Directors, each director present shall
have one vote, irrespective of the number of shares of stock, if any, which he
may hold.
(b) Except as otherwise provided by statute, by the Stockholders'
Agreement, by the Certificate of Incorporation or by these By-Laws, the action
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. Any action authorized, in
writing, by all of the directors entitled to vote thereon and filed with the
minutes of the corporation shall be the act of the Board of Directors with the
same force and effect as if the same had been passed by unanimous vote at a duly
called meeting of the Board.
Section 8 - Vacancies.
Any vacancy in the Board of Directors occurring by reason of an increase in
the number of directors, or by reason the death, resignation, disqualification,
removal (unless a vacancy created by the removal of a director by the
stockholders shall be filled by the stockholders at the meeting at which the
removal was effected) or inability to act of any director, or otherwise, shall
be filled for the unexpired portion of the term by a majority vote of the
remaining directors, though less than a quorum, at any regular meeting or
special meeting of the Board of Directors called for that purpose except as
otherwise provided in the Stockholders' Agreement.
Section 9 - Resignation.
Any director may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
Section 10 - Removal.
Subject to the Stockholders' Agreement, any director may be removed with or
without cause at any time by the affirmative vote of stockholders holding of
record in the aggregate at least a majority of the outstanding shares of the
Corporation at a special meeting of the stockholders called for that purpose,
and may be removed for cause by action of the Board.
-6-
<PAGE> 7
Section 11 - Salary.
--------------------
No stated salary shall be paid to directors, as such, 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 regular or special
meeting of the Board; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 12 - Contracts.
-----------------------
(a) No contract or other transaction between this Corporation and any
other Corporation shall be impaired, affected or invalidated, nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this Corporation is or are interested in, or is a director or
officer, or are directors or officers of such other Corporation provided that
such facts are disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be a party to or may be
interested in any contract or transaction of this Corporation, and no director
shall be liable in any way by reason of such interest, provided that the fact
of such interest be disclosed or made known to the Board of Directors, and
provided that the Board of Directors shall authorize, approve or ratify such
contract or transaction by the vote (not counting the vote of any such
director) of a majority of a quorum, notwithstanding the presence of any such
director at the meeting at which such action is taken. Such director or
directors may be counted in determining the presence of a quorum at such
meeting. This Section shall not be construed to impair or invalidate or in any
way affect any contract or other transaction which would otherwise be valid
under the law (common, statutory or otherwise) applicable thereto.
Section 13 - Committees.
------------------------
Subject to the Stockholders' Agreement, the Board of Directors, by
resolution adopted by a majority of the entire Board, may from time to time
designate from among its members an executive committee and such other
committees, and alternate members thereof, as they may deem desirable, each
consisting of three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in such resolution. Each such
committee shall serve at the pleasure of the Board.
Section 14 - Telephonic Meeting.
-------------------------------
Unless otherwise restricted by the Certificate of Incorporation or the
Stockholders' Agreement, members of the
-7-
<PAGE> 8
Board, or any committee designated by the Board, may participate in a meeting
by means of conference telephone or similar communications equipment in which
all persons participating in the meeting can hear each other. Participation in
such telephonic meeting shall constitute the presence in person at such meeting.
-7A-
<PAGE> 9
ARTICLE IV - OFFICERS
Section 1 - Number, Qualifications, Election and Term of Office.
(a) The officers of the Corporation shall consist of a Chairman of the
Board of Directors, a President, a Chief Executive Officer, an Executive Vice
President, a Chief Operating Officer, a Secretary, and such other officers,
including one or more Vice Presidents, as the Board of Directors, subject to
the Stockholders' Agreement, may from time to time deem advisable. Any officer
other than the Chairman of the Board of Directors may be, but is not required
to be, a director of the Corporation. Any two or more offices may be held by
the same person.
(b) The Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the Board of Directors. In addition, the Chairman of the Board
shall have and exercise such further powers and duties as from time to time
may be prescribed in these by-laws or by the Board of Directors.
(c) The President. The President shall have and exercise such powers and
duties as from time to time may be prescribed in these by-laws or by the Board
of Directors.
(d) The Chief Executive Officer. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have supervision of and
responsibility for all the property, business and affairs of the Corporation
and shall see that the policies and programs adopted or approved by the Board
of Directors are carried out.
(e) The Chief Operating Officer. The Chief Operating Officer shall,
subject to the control of the Board of Directors and the Chief Executive
Officer, have active management and supervision over the business of the
Corporation and shall see that the policies and programs adopted or approved by
the Board are carried out.
(f) Vice President. Each Vice President shall have and exercise such
powers and duties as from time to time may be conferred upon them by the Board
of Directors or by the Chief Executive Officer.
(g) The Secretary. It shall be the duty of the Secretary (i) to keep or
cause to be kept an original or duplicate record of the proceedings of the
stockholders and the Board of Directors and a copy of the certificate of
incorporation of the corporation and of these by-laws; (ii) to attend to the
giving of notices of the Corporation as may be required by law or these
by-laws; (iii) to be custodian of the Corporation's contracts, policies,
leases, deeds and other indicia of title, and all other non-financial business
records; (iv) to be
-7B-
<PAGE> 10
custodian of the seal of the Corporation and see that the seal is affixed
to such documents as may be required; (v) to have charge of and keep at the
principal executive office of the Corporation, or cause to be kept at the office
of a transfer agent or registrar, the stock bonds of the Corporation, and an
original or duplicate stock ledger, giving the names of the stockholders in
alphabetical order and showing their respective addresses, the number and date
of each certificate issued for shares and the date of cancellation of every
certificate surrendered for cancellation; and (vi) to perform all duties
incident to the office of Secretary and such other duties as may from time to
time be prescribed by the Board of Directors or the Chief Executive Officer.
(h) The officers of the Corporation shall be elected by the Board of
Directors at the regular annual meeting of the Board following the annual
meeting of stockholders.
(i) Each officer shall hold office until the annual meeting of the Board of
Directors next succeeding his election, and until his successor shall have been
elected and qualified, or until his death, resignation or removal.
-7C-
<PAGE> 11
Section 2 - Resignation.
Any officer may resign at any time by giving written notice of such
resignation to the Board of Directors, or to the President or the Secretary of
the Corporation. Unless otherwise specified in such written notice, such
resignation shall take effect upon receipt thereof by the Board of Directors or
by such officer, and the acceptance of such resignation shall not be necessary
to make it effective.
Section 3 - Removal.
Any officer may be removed, either with or without cause, and a successor
elected by a majority vote of the Board of Directors at any time.
Section 4 - Vacancies.
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the
-8-
<PAGE> 12
term by a majority vote of the Board of Directors, except as otherwise required
by the Stockholders' Agreement.
Section 5 - Duties of Officers.
Officers of the Corporation shall, unless otherwise provided by the
Board of Directors, each have such powers and duties as generally pertain to
their respective offices as well as such powers and duties as may be set forth
in these by-laws, or may from time to time be specifically conferred or imposed
by the Board of Directors. The President shall be the chief executive officer
of the Corporation.
Section 6 - Sureties and Bonds.
In case the Board of Directors shall so require, any officer,
employee or agent of the Corporation shall execute to the Corporation a bond in
such sum, and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting for
all property, funds or securities of the Corporation which may come into his
hands.
Section 7 - Shares of Other Corporations.
Whenever the Corporation is the holder of shares of any other
Corporation, any right or power of the Corporation as such shareholder
(including the attendance, acting and voting at stockholders' meetings and
execution of waivers, consents, proxies or other instruments) may be exercised
on behalf of the Corporation by the President, any Vice President, or such other
person as the Board of Directors may authorize.
ARTICLE V - SHARES OF STOCK
Section 1 - Certificate of Stock.
(a) The certificates representing shares of the Corporation shall be
in such form as shall be adopted by the Board of Directors and shall comply
with the requirements set forth in the Stockholders' Agreement, and shall be
numbered and registered in the order issued. They shall bear the holder's name
and the number of shares, and shall be signed by (i) the Chairman of the Board
or the President or a Vice President, and (ii) the Secretary or Treasurer, or
any Assistant Secretary or Assistant Treasurer, and shall bear the corporate
seal.
(b) No certificate representing shares shall be issued until the full
amount of consideration therefor has been paid, except as otherwise permitted
by law.
-9-
<PAGE> 13
(c) To the extent permitted by law, the Board of Directors may
authorize the issuance of certificates for fractions of a share which shall
entitle the holder to exercise voting rights, receive dividends and participate
in liquidating distributions, in proportion to the fractional holdings; or it
may authorize the payment in cash of the fair value of fractions of a share as
of the time when those entitled to receive such fractions are determined; or it
may authorize the issuance, subject to such conditions as may be permitted by
law, of scrip in registered or bearer form over the signature of an officer or
agent of the Corporation, exchangeable as therein provided for full shares, but
such scrip shall not entitle the holder to any rights of a shareholder, except
as therein provided.
Section 2 - Lost or Destroyed Certificates.
The holder of any certificate representing shares of the Corporation
shall immediately notify the Corporation of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it, alleged to have been
lost or destroyed. On production of such evidence of loss or destruction as the
Board of Directors in its discretion may require, the Board of Directors may,
in its discretion, require the owner of the lost or destroyed certificate, or
his legal representatives, to give the Corporation a bond in such sum as the
Board may direct, and with such surety or sureties as may be satisfactory to
the Board, to indemnify the Corporation against any claims, loss, liability or
damage it may suffer on account of the issuance of the new certificate. A new
certificate may be issued without requiring any such evidence or bond when, in
the judgment of the Board of Directors, it is proper so to do.
Section 3 - Transfers of Shares.
(a) Transfers of shares of the Corporation shall be made on the share
records of the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of the
certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer
and of payment of transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record
of any share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, 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 expressly provided by law.
-10-
<PAGE> 14
Section 4 -- Record Date.
In lieu of closing the share records of the Corporation, the Board of
Directors may fix, in advance, a date no exceeding sixty days, not less than ten
days, as the record date for the determination of stockholders entitled to
receive notice of, or to vote at, any meeting of stockholders, or to consent to
any proposal without a meeting, or for the purpose of determining stockholders
entitled to receive payment of any dividends, or allotment of any rights, or for
the purpose of any other action. If no record date is fixed, the record date for
the determination of 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 no notice is given, the day on which the
meeting is held; the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date for the
adjourned meeting.
ARTICLE VI -- DIVIDENDS
Subject to applicable law, the Certificate of Incorporation and the
Stockholders' Agreement, dividends may be declared and paid out of any funds
available therefor, as often, in such amounts, and at such time or times as the
Board of Directors may determine.
ARTICLE VII -- FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of
Directors from time to time, subject to applicable law.
ARTICLE VIII -- CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be
approved from time to time by the Board of Directors.
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<PAGE> 15
ARTICLE IX -- AMENDMENTS
Section 1 -- By Stockholders.
Subject to the Stockholders' Agreement, all by-laws of the Corporation
shall be subject to alteration or repeal, and new by-laws may be made, by the
affirmative vote of stockholders holding of record in the aggregate at least a
majority of the outstanding shares entitled to vote in the election of directors
at any annual or special meeting of stockholders, provided that the notice or
waiver of notice of such meeting shall have summarized or set forth in full
therein, the proposed amendment.
Section 2 -- By Directors.
Subject to the Stockholders' Agreement, the Board of Directors shall
have power to make, adopt, alter, amend and repeal, from time to time, by-laws
of the Corporation; provided, however, that the stockholders entitled to vote
with respect thereto as in this Article IX above-provided may alter, amend or
repeal by-laws made by the Board of Directors, except that the Board of
Directors shall have no power to change the quorum for meetings of stockholders
or of the Board of Directors, or to change any provisions of the by-laws with
respect to the removal of directors or the filling of vacancies in the Board
resulting from the removal by the stockholders. If any by-law 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
stockholders for the election of directors, the by-law so adopted, amended or
repealed, together with a concise statement of the changes made.
ARTICLE X -- INDEMNITY
Section 1 -- Indemnification.
The Corporation hereby agrees to hold harmless and indemnify any of
its officers, directors, employees or agents from and against, and to reimburse
such persons for, any and all judgments, fines, liabilities, amounts paid in
settlement and expenses, including attorneys' fees, incurred directly or
indirectly as a result of or in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, whether or not such action, suit or proceeding is by or in
the right of the Corporation to procure a judgment in its favor, including an
action, suit or proceeding by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise for which such person served in any
capacity at the request of the Corporation, to which such person is, was or at
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<PAGE> 16
any time becomes a party, or is threatened to be made a party, or as a result of
or in connection with any appeal therein, by reason of the fact that such person
is, was or at any time becomes a director, officer, employee or agent of the
Corporation or is or was serving or at any time serves such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, whether arising out of any breach of such person's fiduciary duty
as a director, officer, employee or agent of such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
under any state or federal law or otherwise; provided, however, that (i)
indemnification shall be paid pursuant to this Article X if and only if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful; and (ii) no indemnification shall be payable pursuant to this
Article X if a court having jurisdiction in the matter shall determine that such
indemnification is not lawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. 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 to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 2 - Continuation of Indemnity.
All agreements and obligations of the Corporation contained herein shall
continue during the period such person shall serve as a director, officer;
employee or agent of the Corporation and shall continue thereafter so long as
such person shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person was a director or officer
of the Corporation or served at the request of the Corporation in any capacity
for any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise.
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<PAGE> 17
Section 3 - Advancement and Repayment of Expenses.
Expenses incurred by an officer, director, employee or agent in defending
any threatened or pending action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation in advance of
the final disposition thereof, other than those expenses for which such director
or officer is not entitled to indemnification pursuant to the proviso to, or the
last sentence of, Section 1 of this Article X. The Corporation shall make such
payments upon receipt of (i) a written request made by such person for payment
of such expenses, (ii) an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized herein and (iii) evidence
satisfactory to the Corporation as to the amount of such expenses.
Section 4 - Authorization.
Any indemnification under this Article X (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1 of this Article X. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Corporation.
Section 5 - Notification and Defense of Claim.
Promptly after receipt by a person seeking indemnification pursuant to
this Article X of notice of the commencement of any action, suit or proceeding,
such person will, if a claim in respect thereof is to be made against the
Corporation under this Article X, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it from
any liability which it may have to such person otherwise than under this
Article X. With respect to any such action, suit or proceeding as to which such
person notifies the Corporation of the commencement thereof:
A. The Corporation will be entitled to participate therein at its own
expense; and
B. Except as otherwise provided below, to the extent that it may wish, the
Corporation jointly with any other indemnifying party similarly notified will
be entitled to assume
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<PAGE> 18
the defense thereof, with counsel satisfactory to the person to be indemnified.
After notice from the Corporation to the person to be indemnified of its
election so to assume the defense thereof, the Corporation will not be liable
to such person under this Article X for any legal or other expenses
subsequently incurred by such person in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided below.
The person to be indemnified shall have the right to employ his or her own
counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of such person unless (i) the
employment of counsel by such person has been authorized by the Corporation in
connection with the defense of such action, (ii) such person shall have
reasonably concluded that there may be a conflict of the defense of such
action, or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for such person shall be borne by the Corporation (it being
understood, however, that the Corporation shall not be liable for the expenses
of more than one counsel for such person in connection with any action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances). The Corporation shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
on behalf of the Corporation or as to which such person shall have made the
conclusion provided for in (ii) above.
C. Anything in this Section 5 to the contrary notwithstanding, the
Corporation shall not be liable to indemnify any person seeking indemnification
under this Article X for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation on
the person to be indemnified without such person's written consent. Neither the
Corporation nor any such person will unreasonably withhold their consent to any
proposed settlement.
SECTION 6 - NONEXCLUSIVITY.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article X shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the General Corporation Law of the State of Delaware, the Corporation's
Certificate of Incorporation, as amended, the Corporation's By-Laws, as now in
effect or as hereafter amended, any agreement, any vote of stockholders or
directors, any applicable law, or otherwise.
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<PAGE> 19
SECTION 7 - INDEMNIFICATION OF OTHER EXPENSES.
In the event any person seeking indemnification hereunder is required to
bring any action to enforce rights or to collect monies due under this Article X
and is successful in such action, the Corporation shall reimburse such person
for all costs and expenses, including attorney's fees, incurred by such person
in connection with such action.
SECTION 8 - LENGTH OF EFFECTIVENESS.
The indemnification and advancement of expenses provided by or granted
pursuant to this By-Law 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.
-16-
<PAGE> 20
EXHIBIT C
WHEREAS, it is in the best interests of Katz Media Corporation (the
"Corporation") and its stockholders that the Corporation effect a merger of the
Corporation (the "Merger") with KMC Acquisition Corporation ("Newco"), an
entity to be organized by, among others, DLJ Merchant Banking Partners, L.P.
and its affiliates;
RESOLVED, that the Merger is hereby approved in accordance with and upon
the terms and conditions set forth in the Agreement and Plan of Merger (the
"Merger Agreement") dated July 8, 1994, which terms and conditions include,
among other things, a merger consideration per share of Common Stock (on a
fully diluted basis) of $63 per share; provided also that DLJ or Newco may
effect an exchange with one or more stockholders as contemplated in the merger
Agreement;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer and
the Chief Operating Officer of the Corporation, and any one of them, are hereby
authorized and directed, in the name and on behalf of the Corporation, to
execute and deliver the Merger Agreement, in the form thereof described above,
and that the Corporation perform its obligations thereunder;
RESOLVED, that the Merger Agreement be submitted for the requisite
approval of stockholders of the Corporation, consistent with the applicable
provisions of the Delaware General Corporation Law and of the Stockholders'
Agreement of the Corporation dated May 2, 1990, as amended to date, and any
ancillary agreements thereto;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer and
the Chief Operating Officer of the Corporation, and any one of them, and any
other officers or other persons acting at the direction thereof, are hereby
authorized, empowered and directed to execute and deliver such documents,
agreements and instruments, and take any and all other action as may be
necessary to consummate the Merger and the other transactions contemplated in
the Merger Agreement, including but not limited to, filing a Merger Certificate
with the Secretary of State of Delaware;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer and
the Chief Operating Officer of the Corporation, and any one of them, and other
<PAGE> 21
persons mentioned above are hereby directed, authorized and empowered to
execute and deliver such documents, agreements and instruments and to take any
and all other action necessary or deemed appropriate in order to effectuate the
intent of the foregoing resolutions.
- 2 -
<PAGE> 22
EXHIBIT D-1
RESOLVED, that it is advisable and in the best interests of the
Corporation and its stockholders that the Corporation effect a merger of the
Corporation (the "Merger") with KMC Acquisition Corporation ("Newco"), to be
organized by, among others, DLJ Merchant Banking Inc. and its affiliates;
RESOLVED, that the Merger is hereby approved in accordance with and
upon the terms and conditions set forth in the Agreement and Plan of Merger (the
"Merger Agreement") dated July 8, 1994 and the Merger Agreement is hereby
adopted; provided also that DLJ or Newco may effect an exchange with one or more
stockholders as contemplated in the Merger Agreement;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer
and the Chief Operating Officer of the Corporation, and any one of them, are
hereby authorized and directed, in the name and on behalf of the Corporation, to
execute and deliver the Merger Agreement, in the form thereof described above,
and that the Corporation perform its obligations thereunder;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer
and the Chief Operating Officer of the Corporation, and any one of them, and any
other officers or other persons acting at the direction thereof, are hereby
authorized, empowered and directed to execute and deliver such documents,
agreements and instruments, and take any and all other action as may be
necessary to consummate the Merger and the other transactions contemplated in
the Merger Agreement, including but not limited to, filing a Merger Certificate
with the Secretary of State of Delaware;
RESOLVED, that the Chairman of the Board, the Chief Executive Officer
and the Chief Operating Officer of the Corporation, and any one of them, and
other persons mentioned above are hereby directed,
<PAGE> 23
authorized and empowered to execute and deliver such documents, agreements and
instruments and to take any and all other action necessary or deemed appropriate
in order to effectuate the intent of the foregoing resolutions.
A-2
<PAGE> 1
EXHIBIT 3.104
PAGE 1
State of Delaware
Office of the Secretary of State
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE KATZ AGENCY, INC.", CHANGING ITS NAME FROM "THE KATZ AGENCY,
INC." TO "KATZ COMMUNICATIONS, INC.", FILED IN THIS OFFICE ON THE TWENTY-SIXTH
DAY OF OCTOBER, A.D. 1981, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7596787
DATE: 08-03-95
0802393 8100
950175715
<PAGE> 2
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
THE KATZ AGENCY, INC.
---------------------------
Adopted in Accordance
with the
Provisions of Section 242
of the
General Corporation Law
of the
State of Delaware
----------------------------
THE KATZ, AGENCY, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify that an amendment to the Restated
Certificate of Incorporation of the Corporation changing paragraph 1 thereof to
read as follows has been duly adopted in accordance with the provisions of
Sections 242 and 228 of the General Corporation Law of the State of Delaware:
"The name of the corporation (hereinafter
sometimes referred to as the "Corporation") is
Katz Communications, Inc."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed on its behalf by James L. Greenwald,
<PAGE> 3
its President, and attested by Richard D. Mendelson, its Secretary, this 20th
day of October, 1981.
THE KATZ AGENCY, INC.
By: /s/ James L. Greenwald
-------------------------------
James L. Greenwald
President
Attest:
/s/ Richard D. Mendelson
- ---------------------------------
Richard D. Mendelson
Secretary
<PAGE> 4
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"KATZ MERGER CORP.", A DELAWARE CORPORATION,
WITH AND INTO "KATZ COMMUNICATIONS, INC." UNDER THE NAME OF "KATZ
COMMUNICATIONS, INC.", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF
THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE SECOND DAY OF
MAY, A.D. 1990, AT 10:15 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7596788
DATE: 08-03-95
0802393 8100M
950175715
<PAGE> 5
CERTIFICATE OF MERGER
OF
KATZ MERGER CORP.
INTO
KATZ COMMUNICATIONS, INC.
Katz Communications, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
------ ------------------------
Katz Communications, Inc. Delaware
Katz Merger Corp. Delaware
SECOND: That an agreement of merger between the parties to the merger
has been approved, adopted, certified, executed and acknowledged in accordance
with the requirements of section 251 of the General Corporation Law of the
State of Delaware.
THIRD: That the name of the surviving corporation of the merger is
Katz Communications, Inc.
FOURTH: That the Restated Certificate of Incorporation of the
surviving corporation, as further amended, shall be in the form attached to
this Certificate of Merger as Exhibit A.
FIFTH: That the executed agreement of merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is One Dag
Hammarskjold Plaza, New York, New York 10017.
SIXTH: That a copy of the agreement of merger will be furnished by
the surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
SEVENTH: The agreement of merger has been duly adopted by the
stockholders in accordance with Section 228 of the General Corporation Law of
the State of Delaware. Prompt written notice
<PAGE> 6
of the adoption of the agreement of merger has been given to those stockholders
who have not consented in writing thereto, as provided in Section 228 of the
General Corporation Law of the State of Delaware.
KATZ COMMUNICATIONS, INC.
By: James L. Greenwald
-------------------------------
James L. Greenwald
Chairman, Chief
Executive Officer,
President and Chief
Operating Officer
ATTEST:
By: Arnold Sheiffer
----------------------------------
Arnold Sheiffer
Secretary
<PAGE> 7
Exhibit A
RESTATED
CERTIFICATE OF INCORPORATION
OF
KATZ COMMUNICATIONS, INC.
FIRST: The name of the Corporation is KATZ COMMUNICATIONS, INC. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of
Kent, Delaware. The Prentice-Hall Corporation System, Inc. is the Corporation's
registered agent at that address.
THIRD: Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may now or hereafter be organized
under the General Corporation Law of the State of Delaware, including, without
limitation, to act as the agent or representative of media, primarily in the
sale of advertising space or time.
FOURTH: Stock. The Corporation shall have authority to issue a total of
1,000 shares of common stock, par value $.01 per share.
FIFTH: Incorporator. The name and mailing address of the incorporator
are as follows: James M. Neeley, c/o Battle Fowler, Lidstone, Jaffin, Pierce &
Kheel, 280 Park Avenue, New York, New York 10017.
SIXTH: By-Laws. The Board of Directors of the Corporation from time to
time may make, alter or repeal the by-laws of the Corporation, except as such
power may be limited by any one or more by-laws adopted by the stockholders.
SEVENTH: Indemnification. The Corporation shall indemnify any and all
persons who it shall have the power to indemnify from and against any and all
liabilities, damages, amounts paid in settlement, costs and expenses, including
attorneys' fees incurred in connection with any threatened, pending or
completed claim, action, suit, proceeding or investigation arising out of or
pertaining to any action or omission occurring prior to or after the date of
this Certificate of Incorporation, to the full extent permitted by the Delaware
General Corporation Law, as the same now exists or may hereafter be amended.
EIGHTH: Limitation on Director's Liability. No director of the
Corporation shall be personally liable to the Corpora-
<PAGE> 8
tion or its stockholders for monetary damages for breach of his or her fiduciary
duty as a director; provided, however, that nothing in this Article EIGHTH shall
eliminate or limit the liability of any director (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 faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit."
2
<PAGE> 9
STATE OF DELAWARE PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"THE KATZ AGENCY, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY OF JUNE,
A.D. 1981, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7192003
DATE: 07-26-94
0802393 8100
944138017
<PAGE> 10
RESTATED
CERTIFICATE OF INCORPORATION
OF
THE KATZ AGENCY, INC.
(Original Certificate filed June 10, 1974)
1. Name. The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is
THE KATZ AGENCY, INC.
2. Registered Office and Agent. The location of the Corporation's
registered office in Delaware is at 306 South State Street, City of Dover,
County of Kent, Delaware. The name of the registered agent at such address is
the United States Corporation Company.
3. Purposes. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may now or hereafter be organized under the
General Corporation Law of the State of Delaware, including, without limitation,
to act as the agent or representative of media, primarily in the sale of
advertising space or time.
4. Management. The business and affairs of the Corporation shall be managed
under the direction of an Executive Council elected by the shareholders, which
Executive Council shall have all of the powers and duties conferred or imposed
upon a board of directors under the Delaware General Corporation Law.
5. Stock. The Corporation shall have authority to issue a total of
15,150,000 shares of stock, consisting of 10,000,000 shares, par value ten cents
per share, designated Common Stock, 5,000,000 shares, par value ten cents per
share, designated Class A Common Stock, 100,000 shares, par value $1.00 per
share, designated the Preferred Stock and 50,000 shares, par value $10.00 per
share, designated the $6.00 Preferred Stock.
The powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the Common Stock, Class A Common Stock, Preferred Stock
and the $6.00 Preferred Stock are as follows:
<PAGE> 11
A. $6.00 Preferred Stock:
(i) The holders of the $6.00 Preferred Stock shall be entitled to receive,
when and as declared by the Executive Council of the Corporation, out of any
assets of the Corporation available for dividends pursuant to the laws of the
State of Delaware, preferential dividends at the rate of $6.00 per share per
calendar year and no more, payable annually, semi-annually or quarter-annually
on such dates as the Executive Council of the Corporation may determine, before
any dividends shall be declared or paid upon or set apart for the Common Stock,
Class A Common Stock or Preferred Stock. If the Corporation shall not in any
calendar year pay the full amount of preferential dividends to the holders of
the $6.00 Preferred Stock, then the amount unpaid in such year, but not in
excess of the Corporation's net profits in such year, shall be accumulated on
the books and records of the Corporation as a debt to the holders of the $6.00
Preferred Stock.
(ii) The holders of the $6.00 Preferred Stock shall not be entitled to vote
for any purpose except as may be required by law.
(iii) After approval of the Executive Council, the Corporation may redeem
the whole or any part of the outstanding $6.00 Preferred Stock at any time, or
from time to time, after December 31, 1976, at a price of ONE HUNDRED DOLLARS
($100.00) per share plus any unpaid accumulated dividends thereon. If less than
all of the shares are to be redeemed, any such redemptions shall be made from
all holders of $6.00 Preferred Stock in proportion to their holdings on the date
fixed for such redemption. Notice of any election to redeem shall be mailed to
each holder of such stock at his address as it appears on the books of the
Corporation not less than 30 days prior to the date upon which the $6.00
Preferred Stock is to be redeemed. If a valid offer of redemption is made, the
dividends on the shares to be redeemed shall cease to accrue from and after the
designated date of redemption, and all rights with respect to the $6.00
Preferred Stock called for redemption shall cease to accrue from and after the
designated date of redemption, and all rights with respect to the $6.00
Preferred Stock called for redemption shall, from and after such redemption
date, cease and terminate except that the holder thereof shall at all times have
and retain the right to receive the redemption price therefor, but without
interest.
-2-
<PAGE> 12
(iv) In the event of any partial or complete liquidation or of the
dissolution or of the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the $6.00 Preferred Stock shall be
entitled, before any of the assets of the Corporation shall be distributed
among or paid over to the holders of any other class of the Corporation's
stock, to be paid ONE HUNDRED DOLLARS per share plus any unpaid accumulated
dividends thereon. If the assets of the Corporation are insufficient to meet
such preferences of the $6.00 Preferred Stock, the entire assets of the
Corporation available for distribution to stockholders shall be distributed,
first in payment of any unpaid accumulated dividends of the $6.00 Preferred
Stock, and, second, ratably among the holders of the $6.00 Preferred Stock in
payment of the liquidation preference of ONE HUNDRED DOLLARS ($100.00) per
share.
B. The Preferred Stock:
(i) The Preferred Stock may be issued from time to time in one or
more series as may be determined from time to time by the Executive Council,
each such series to be distinctly designated. Subject to and provided the same
does not violate or limit any prior rights of the holders of the $6.00
Preferred Stock, the Executive Council is hereby expressly authorized by
resolution or resolutions, from time to time adopted providing for the issuance
of Preferred Stock, to fix and state the designations, powers, preferences and
relative, participating, optional or other special rights, of the shares of each
series of Preferred Stock and the qualifications, limitations and restrictions
of each such series, including (but without limiting the generality of the
foregoing) any of the following with respect to which the Executive Council
shall determine to make affirmative provisions:
(a) Distinctive name and serial designation;
(b) Annual dividend rate or rates and the dividend payment dates;
(c) Whether dividends are to be cumulative or non-cumulative and the
participating or other special rights, if any, with respect to the payment of
dividends;
(d) Whether any series shall be subject to redemption and, if so, the
manner of redemption, and the redemption price or prices;
-3-
<PAGE> 13
(e) The amount or amounts of preferential or other payment to which
any series is entitled, over any other series or over the Common Stock and
Class A Common Stock on voluntary or involuntary liquidation, dissolution, or
winding up;
(f) Any sinking fund or other retirement provisions and the extent
to which such charges therefor are to have priority over the payment of
dividends on or the making of sinking fund or other like retirement provisions
for shares of any other series or over dividends on the Class A Stock and the
Common Stock;
(g) Any conversion, exchange, purchase or other privileges to
acquire shares of any other series or of the Class A Common Stock or the Common
Stock;
(h) The number of shares of such series;
(i) The voting rights, if any, of such series.
Each share of each series of Preferred Stock shall have the same
relative rights and be identical in all respects with all the other shares of
the same series.
(ii) The authority of the Executive Council to provide for the
issuance of one or more series of the Preferred Stock, shall include, but shall
not be limited to, authority to issue shares of the Preferred Stock, Class A
Common Stock or the Common Stock, or a combination thereof, for any purpose and
in any manner (including issuance pursuant to rights, warrants or other
options) permitted by law, for delivery as all or part of the consideration for
and in connection with the acquisition of all or part of the stock of another
corporation, or of all or part of the assets of another corporation or
enterprise, irrespective of the amount by which the issuance of such stock
shall increase the number of shares outstanding (but not in excess of the
number of shares authorized). Adoption of this provision, as part of the
Certificate of Incorporation by the holders of stock of the Corporation shall
be deemed, for all purposes, and with respect to such acquisition, to
constitute advance approval by the holders of the stock of the Corporation of
the issuance of such stock for such purpose or purposes.
(iii) Shares of any series of Preferred Stock which shall be
issued and thereafter acquired by the Corporation, whether through purchase,
redemption, conversion
-4-
<PAGE> 14
or otherwise, may, by resolution or resolutions of the Executive Council, be
returned to the status of authorized but unissued Preferred Stock of the same
series. Unless otherwise provided in the resolution or resolutions of the
Executive Counsel providing for the issue thereof, the number of authorized
shares of Preferred Stock of any such series may be increased or decreased (but
not below the number of shares thereof then outstanding), by resolution or
resolutions of the Executive Council. In case the number of shares of any such
series of Preferred Stock shall be decreased, the unissued shares which
represent such decrease shall, unless otherwise provided in the resolution or
resolutions of the Executive Council providing for the issuance thereof, resume
the status of authorized but unissued Preferred Stock, undesignated as to
series.
(iv) At all elections of members of the Executive Council of the
Corporation and in respect of all other matters as to which the vote or consent
of stockholders of the Corporation shall be required, the holders of the Common
Stock entitled to vote at such election, or upon such other matters, shall be
entitled to one (1) vote for each share of stock held by them, and the holders
of the Preferred Stock shall have no voting rights, except such as are granted
by law, or as may be fixed by the resolution or resolutions of the Executive
Council providing for the issue of such series, and such voting rights, if any,
may be superior, equal or subordinate to the voting rights of the holders of
any other series of Preferred Stock or of the Common Stock, as such resolution
or resolutions of the Executive Council shall provide.
C. The Class A Common Stock:
The relative rights, preferences and limitations of the Class A Common
Stock shall be in all respects identical, share for share, with the Common
Stock except that voting power for the election of members of the Executive
Council and for all other purposes shall be vested exclusively in the holders
of the Common Stock and, to the extent authorized by the Executive Council, the
holders of the Preferred Stock. Except as otherwise required by law the holders
of the Class A Common Stock shall not have any voting power or be entitled to
receive any notice of meetings of shareholders.
D. Common Stock:
(i) The holders of the Common Stock and Class A Common Stock shall
be entitled to receive dividends as may from time to time be declared by the
Executive Council
-5-
<PAGE> 15
out of funds legally available therefor after payment of dividends on the $6.00
Preferred Stock for the then current calendar year, any accumulated unpaid
dividends on the $6.00 Preferred Stock and any dividends or accumulated
dividends on any series of the Preferred Stock having preferential dividend
rights over the Class A Stock and the Common Stock.
(ii) In the event of any complete or partial liquidation, or of the
dissolution or the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the Class A Stock and the Common Stock
shall be entitled to the same rate per share of any distribution or other
payment after all payments hereinabove provided to be made have been made to
the holders of the $6.00 Preferred Stock and the Preferred Stock.
(iii) At each meeting of stockholders, each holder of shares of Common
Stock shall have one vote for each share of the Common Stock standing in his
name on the books of the Corporation.
6. By-laws. The Executive Council of the Corporation from time to time may
make, alter or repeal by-laws of the Corporation, except as such power may be
limited by any one or more by-laws adopted by the stockholders.
7. Election and Removal of Executive Council. Elections of members of the
Executive Council of the Corporation need not be by written ballot unless the
by-laws of the Corporation so provide. The stockholders at any time may remove
any or all members of the Executive Council of the Corporation, with or without
cause.
8. Creditors Arrangements. 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 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 this 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 this Corpora-
-6-
<PAGE> 16
tion, 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.
This Restated Certificate of Incorporation was duly adopted by the
stockholders in accordance with the provisions of section 245 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, we have signed this Certificate this 26th day of June
1981.
[ILLEGIBLE SIGNATURE]
_____________________
President
Attest:
[ILLEGIBLE SIGNATURE]
_____________________
Secretary
-7-
<PAGE> 17
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "THE KATZ AGENCY, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF
DECEMBER, A.D. 1978, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ EDWARD J. FREEL
___________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION: 7192002
0802393 8100 DATE: 07-26-94
944138017
<PAGE> 18
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE KATZ AGENCY, INC.
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
* * * * * * * *
We, James L. Greenwald, President and Peter R. Goulazian, Secretary of The
Katz Agency, Inc., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has been
amended as follows:
By striking out the whole of Article 4 thereof as it now exists and
inserting in lieu and instead thereof a new Article 4:
"4. Stock. The corporation shall have authority to issue a total of
15,150,000 shares of stock, consisting of 10,000,000 shares, par value ten
cents per share, designated Common Stock, 5,000,000 shares, par value ten cents
per share, designated Class A Common Stock, 100,000 shares, par value $1.00 per
share, designated the Preferred Stock and 50,000 shares, par value $10.00 per
share, designated the $6.00 Preferred Stock.
The powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of the Common Stock, Class A Common Stock,
Preferred Stock and the $6.00 Preferred Stock are as follows:
<PAGE> 19
A. $6.00 Preferred Stock:
(i) The holders of the $6.00 Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation,
out of any assets of the Corporation available for dividends pursuant to the
laws of the State of Delaware, preferential dividends at the rate of $6.00 per
share per calendar year and no more, payable annually, semi-annually or
quarter-annually on such dates as the Board of Directors of the Corporation may
determine, before any dividends shall be declared or paid upon or set apart for
the Common Stock, Class A Common Stock or Preferred Stock. If the Corporation
shall not in any calendar year pay the full amount of preferential dividends to
the holders of the $6.00 Preferred Stock, then the amount unpaid in such year,
but not in excess of the Corporation's net profits in such year, shall be
accumulated on the books and records of the Corporation as a debt to the
holders of the $6.00 Preferred Stock.
(ii) The holders of the $6.00 Preferred Stock shall not be
entitled to vote for any purpose except as may be required by law.
(iii) After approval of the Board of Directors, the Corporation
may redeem the whole or any part of the outstanding $6.00 Preferred Stock at any
time, or from time to time, after December 31, 1976, at a price of ONE HUNDRED
DOLLARS ($100.00) per share plus any unpaid accumulated dividends thereon. If
less than all of the shares are to be redeemed, any such redemptions shall be
made from all holders of $6.00 Preferred Stock in proportion to their holdings
on the date fixed for such redemption. Notice of any election to redeem shall
be mailed to each holder of such stock at his address as it appears on the
books of the Corporation not less than 30 days prior to the date upon which the
$6.00 Preferred Stock is to be redeemed. If a valid offer of redemption is
made, the dividends on the shares to be redeemed shall cease to accrue from and
after the designated date of redemption, and all rights with respect to the
$6.00 Preferred Stock called for redemption shall cease to accrue from and
after the designated date of redemption, and all rights with respect to the
$6.00 Preferred Stock called for redemption shall, from and after such
redemption date, cease and terminate except that the holder thereof shall at
all times have and retain the right to receive the redemption price therefor,
but without interest.
-2-
<PAGE> 20
(iv) In the event of any partial or complete liquidation or
of the dissolution or of the winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of the $6.00 Preferred Stock
shall be entitled, before any of the assets of the Corporation shall be
distributed among or paid over to the holders of any other class of the
Corporation's stock, to be paid ONE HUNDRED DOLLARS per share plus any unpaid
accumulated dividends thereon. If the assets of the Corporation are
insufficient to meet such preferences of the $6.00 Preferred Stock, the entire
assets of the Corporation available for distribution to stockholders shall be
distributed, first in payment of any unpaid accumulated dividends of the $6.00
Preferred Stock, and, second, ratably among the holders of the $6.00 Preferred
Stock in payment of the liquidation preference of ONE HUNDRED DOLLARS ($100.00)
per share.
B. The Preferred Stock:
(i) The Preferred Stock may be issued from time to time in
one or more series as may be determined from time to time by the Board of
Directors, each such series to be distinctly designated. Subject to and
provided the same does not violate or limit any prior rights of the holders of
the $6.00 Preferred Stock, the Board of Directors is hereby expressly
authorized by resolution or resolutions, from time to time adopted providing
for the issuance of Preferred Stock, to fix and state the designations, powers,
preferences and relative, participating, optional or other special rights, of
the shares of each series of Preferred Stock and the qualifications,
limitations and restrictions of each such series, including (but without
limiting the generality of the foregoing) any of the following with respect to
which the Board of Directors shall determine to make affirmative provisions:
(a) Distinctive name and serial designation;
(b) Annual dividend rate or rates and the dividend payment dates;
(c) Whether dividends are to be cumulative or non-cumulative and
the participating or other special rights, if any, with respect to the payment
of dividends;
(d) Whether any series shall be subject to redemption and, if
so, the manner of redemption, and the redemption price or prices;
-3-
<PAGE> 21
(e) The amount or amounts of preferential or other payment to
which any series is entitled, over any other series or over the Common Stock
and Class A Common Stock on voluntary or involuntary liquidation, dissolution,
or winding up;
(f) Any sinking fund or other retirement provisions and the
extent to which such charges therefor are to have priority over the payment of
dividends on or the making of sinking fund or other like retirement provisions
for shares of any other series or over dividends on the Class A Stock and the
Common Stock;
(g) Any conversion, exchange, purchase or other privileges to
acquire shares of any other series or of the Class A Common Stock or the Common
Stock;
(h) The number of shares of such series;
(i) The voting rights, if any, of such series.
Each share of each series of Preferred Stock shall have the same
relative rights and be identical in all respects with all the other shares of
the same series.
(ii) The authority of the Board of Directors to provide for
the issuance of one or more series of the Preferred Stock, shall include, but
shall not be limited to, authority to issue shares of the Preferred Stock,
Class A Common Stock or the Common Stock, or a combination thereof, for any
purpose and in any manner (including issuance pursuant to rights, warrants or
other options) permitted by law, for delivery as all or part of the
consideration for an in connection with the acquisition of all or part of the
assets of another corporation or enterprise, irrespective of the amount by
which the issuance of such stock shall increase the number of shares
outstanding (but not in excess of the number of shares authorized). Adoption of
this provision, as part of the Certificate of Incorporation by the holders of
stock of the corporation shall be deemed, for all purposes, and with respect to
such acquisition, to constitute advance approval by the holders of the stock of
the corporation of the issuance of such stock for such purpose or purposes.
-4-
<PAGE> 22
(iii) Shares of any series of Preferred Stock which shall be issued
and thereafter acquired by the corporation, whether through purchase,
redemption, conversion or otherwise, may, by resolution or resolutions of the
Board of Directors, be returned to the status of authorized but unissued
Preferred Stock of the same series. Unless otherwise provided in the resolution
or resolutions of the Board of Directors providing for the issue thereof, the
number of authorized shares of Preferred Stock of any such series may be
increased or decreased (but not below the number of shares thereof then
outstanding), by resolution or resolutions of the Board of Directors. In case
the number of shares of any such series of Preferred Stock shall be decreased,
the unissued shares which represent such decrease shall, unless otherwise
provided in the resolution or resolutions of the Board of Directors providing
for the issuance thereof, resume the status of authorized but unissued Preferred
Stock, undesignated as to series.
(iv) At all elections of directors of the corporation and in respect
of all other matters as to which the vote or consent of stockholders of the
corporation shall be required, the holders of the Common Stock entitled to vote
at such election, or upon such other matters, shall be entitled to one (1) vote
for each share of stock held by them, and the holders of the Preferred Stock
shall have no voting rights, except such as are granted by law, or as may be
fixed by the resolution or resolutions of the Board of Directors providing for
the issue of such series, and such voting rights, if any, may be superior, equal
or subordinate to the voting rights of the holders of any other series of
Preferred Stock or of the Common Stock, as such resolution or resolutions of the
Board of Directors shall provide.
C. The Class A Common Stock:
The relative rights, preferences and limitations of the Class A
Common Stock shall be in all respects identical, share for share, with the
Common Stock except that voting power for the election of directors and for all
other purposes shall be vested exclusively in the holders of the Common Stock
and, to the extent authorized by the Board of Directors, the holders of the
Preferred Stock. Except as otherwise required by law the holders of the Class A
Common Stock shall not have any voting power or be entitled to receive any
notice of meetings of shareholders.
-5-
<PAGE> 23
D. Common Stock:
(i) The holders of the Common Stock and Class A Common Stock shall be
entitled to receive dividends as may from time to time be declared by the Board
of Directors out of funds legally available therefor after payment of dividends
on the $6.00 Preferred Stock for the then current calendar year, any
accumulated unpaid dividends on the $6.00 Preferred Stock and any dividends or
accumulated dividends on any series of the Preferred Stock having preferential
dividend rights over the Class A Stock and the Common Stock.
(ii) In the event of any complete or partial liquidation, or of the
dissolution or the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the Class A Stock and the Common Stock
shall be entitled to the same rate per share of any distribution or other
payment after all payments hereinabove provided to be made have been made to
the holders of the $6.00 Preferred Stock and the Preferred Stock.
(iii) At each meeting of stockholders, each holder of shares of
Common Stock shall have one vote for each share of the Common Stock standing in
his name on the books of the Corporation."
SECOND: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware, first by
the Board of Directors at a meeting duly held, and then by the written consent
of the holders of not less than a majority of the outstanding stock entitled to
vote thereon and that written notice of the corporate action has been given to
those stockholders who have not consented in writing, all in accordance with
the provisions of Section 228 of the General Corporation Law, and that the
-6-
<PAGE> 24
capital of the Corporation will not be reduced under or by reason of said
amendment.
IN WITNESS WHEREOF, we have signed this certificate this 19 day of
December, 1978.
[SEAL] [ILLEGIBLE SIGNATURE]
------------------------------
President
[ILLEGIBLE SIGNATURE]
- -------------------------------
Secretary
-7-
<PAGE> 25
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "THE KATZ AGENCY, INC.", FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF JULY,
A.D. 1975, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
0802393 8100 AUTHENTICATION: 7192001
944138017 DATE: 07-26-94
<PAGE> 26
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE KATZ AGENCY, INC.
* * * * * *
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
* * * * * *
We, James L. Greenwald, President and Kenneth A. Mills, Secretary of The
Katz Agency, Inc., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has been
amended as follows:
By striking out the whole of Article 4 thereof as it now exists and
inserting in lieu and instead thereof a new Article 4:
"4. Stock. The corporation shall have authority to issue a total of
1,050,000 shares of stock, consisting of 1,000,000 shares, par value $1.00 per
share, designated Common Stock and 50,000 shares, par value $10.00 per share,
designated $6.00 Preferred Stock.
The powers, preferences and rights, and the qualifications, limitations
or restrictions thereof, of the Common Stock and the $6.00 Preferred Stock are
as follows:
A. $6.00 Preferred Stock:
<PAGE> 27
(i) The holders of the $6.00 Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation,
out of any assets of the Corporation available for dividends pursuant to the
laws of the State of Delaware, preferential dividends at the rate of $6.00 per
share per calendar year and no more, payable annually, semi-annually or
quarter-annually on such dates as the Board of Directors of the Corporation may
determine, before any dividends shall be declared or paid upon or set apart for
the Common Stock. If the Corporation shall not in any calendar year pay the
full amount of preferential dividends to the holders of the $6.00 Preferred
Stock, then the amount unpaid in such year, but not in excess of the
Corporation's net profits in such year, shall be accumulated on the books and
records of the Corporation as a debt to the holders of the $6.00 Preferred
Stock.
(ii) The holders of the $6.00 Preferred Stock shall not be
entitled to vote for any purpose except as may be required by law.
(iii) After approval of the Board of Directors, the Corporation
may redeem the whole or any part of the outstanding $6.00 Preferred Stock at
any time, or from time to time, after December 31, 1976, at a price of ONE
HUNDRED DOLLARS ($100.00) per share plus any unpaid accumulated dividends
thereon. If less than all of the shares are to be redeemed, any such
redemptions shall be made from all holders of $6.00 Preferred Stock in
proportion to their holdings on the date fixed for such redemption. Notice of
any election to redeem shall be mailed to each holder of such stock at his
address as it appears on the books of the Corporation not less than 30 days
prior to the date upon which the $6.00 Preferred Stock is to be redeemed. If a
valid offer of redemption is made, the dividends on the shares to be redeemed
shall cease to accrue from and after the designated date of redemption, and all
rights with respect to the $6.00 Preferred Stock called for redemption shall,
from and after such redemption date, cease and terminate, except that the
holder thereof shall at all times have and retain the right to receive the
redemption price therefor, but without interest.
(iv) In the event of any partial or complete liquidation or of
the dissolution or of the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the $6.00 Preferred Stock shall be
entitled, before any of the assets of the Corporation shall be distributed
among or paid over to the
-2-
<PAGE> 28
holders of any other class of the Corporation's stock, to be paid ONE HUNDRED
DOLLARS per share plus any unpaid accumulated dividends thereon. If the assets
of the Corporation are insufficient to meet such preferences of the $6.00
Preferred Stock, the entire assets of the Corporation available for
distribution to stockholders shall be distributed, first in payment of any
unpaid accumulated dividends of the $6.00 Preferred Stock, and, second, ratably
among the holders of the $6.00 Preferred Stock in payment of the liquidation
preference of ONE HUNDRED DOLLARS ($100.00) per share.
B. Common stock:
(i) The holders of the Common Stock shall be entitled to
receive dividends as may from time to time be declared by the Board of
Directors out of funds legally available therefor after payment of dividends
on the $6.00 Preferred Stock for the then current calendar year and any
accumulated unpaid dividends on the $6.00 Preferred Stock.
(ii) In the event of any complete or partial liquidation,
or of the dissolution or the winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of the Common Stock shall be
entitled to the same rate per share of any distribution or other payment after
all payments hereinabove provided to be made have been made to the holders of
the $6.00 Preferred Stock.
(iii) At each meeting of stockholders, each holder of
shares of Common Stock shall have one vote for each share of Common Stock
standing in his name on the books of the Corporation."
SECOND: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
written consent of the holders of not less than a majority of the outstanding
stock entitled to vote thereon and that written notice of the corporate action
has been given to those stockholders who have not consented in writing, all in
accordance with the
-3-
<PAGE> 29
provisions of Section 228 of the General Corporation Law, and that the capital
of the Corporation will not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, we have signed this certificate this 10th day of July,
1975.
[ILLEGIBLE SIGNATURE]
-------------------------------
President
Attest:
[ILLEGIBLE SIGNATURE]
- -----------------------------
Secretary
-4-
<PAGE> 30
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
WITH AND INTO "THE KATZ AGENCY, INC." UNDER THE NAME OF "THE KATZ AGENCY,
INC.", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF
DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-SIXTH DAY OF JUNE,
A.D. 1974, AT 9 O'CLOCK A.M.
[Secretary of State Seal] /s/ Edward J. Freel
--------------------------------------
Edward J. Freel, Secretary of State
0802393 8100M AUTHENTICATION: 7192000
944138017 DATE: 07-26-94
<PAGE> 31
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER dated June 19, 1974 between THE KATZ AGENCY,
INC., a New York corporation ("Katz"), and THE KATZ AGENCY, INC., a Delaware
corporation ("New Katz"). Katz and New Katz are herein sometimes referred to
collectively as the "Constituent Corporations."
The Certificate of Incorporation of Katz was filed with the Department of
State of the State of New York on December 30, 1908 under the name E. KATZ
SPECIAL ADVERTISING AGENCY, which name was changed to THE KATZ AGENCY, INC.,
the present name, by a certificate filed with the Department of State of the
State of New York on January 6, 1938.
The parties desire to change the place of organization of Katz from New
York to Delaware in a tax free reorganization within the meaning of section
368(a)(1)(F) of the Internal Revenue Code of 1954.
To accomplish that objective, Katz caused New Katz to be organized by
causing a Certificate of Incorporation to be filed with the office of the
Secretary of State of the State of Delaware on June 10, 1974 under the name THE
KATZ AGENCY, INC., which name has not thereafter been changed.
<PAGE> 32
The parties wish to provide for the merger of Katz with and into New Katz,
with the latter to be the corporation surviving the merger (hereinafter
sometimes referred to as the "Surviving Corporation").
The respective Boards of Directors of the Constituent Corporations deem it
desirable and in the best interests of their respective corporations and their
shareholders that the aforesaid merger be accomplished in the manner and on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, and for the purpose of prescribing the terms and
conditions of the merger and the mode of carrying the same into effect, the
parties hereto have agreed, and do hereby agree, as follows:
1. Surviving Corporation. On the Effective Date (as hereinafter
defined) Katz and New Katz shall be combined by merging Katz into New Katz,
which shall continue as the surviving corporation in accordance with the laws
of the State of Delaware.
2. Certificate of Incorporation and By-Laws. The Certificate of
Incorporation and By-Laws of New Katz in effect on the Effective Date shall
continue and shall constitute the Certificate of Incorporation and By-Laws
-2-
<PAGE> 33
of the Surviving Corporation until each is amended, altered or repealed as
provided therein or by law. Said Certificate of Incorporation shall constitute
the Certificate of Incorporation of the Surviving Corporation separate and
apart from this Agreement and may be separately certified as the Certificate of
Incorporation of the Surviving Corporation.
3. Board of Directors and Officers. The persons presently serving as
directors and officers of Katz shall constitute such respective directors and
officers of the Surviving Corporation and shall hold office pursuant to the
By-Laws of the Surviving Corporation.
4. Merger. On the Effective Date, the separate existence of Katz shall
cease, Katz shall be merged into the Surviving Corporation, and the corporate
existence and identity of New Katz (as the Surviving Corporation) shall
continue and the Surviving Corporation shall possess all the attributes,
assets, liabilities and obligations whatsoever of each of the Constituent
Corporations, all as more fully provided in the Business Corporation Law of the
State of New York and the General Corporation Law of the State of Delaware.
5. Supplementary Action. If at any time any further assignments,
assurances in law or instruments of assumption or any other things are
necessary or desirable
3
<PAGE> 34
to vest or to perfect or confirm of record in the Surviving Corporation the
title to and possession of any property, rights, privileges, powers, immunities,
franchises and interests of either of the Constituent Corporations, or otherwise
to carry out the provisions of this Agreement, the officers and directors of the
respective Constituent Corporations as of the Effective Date shall execute and
deliver, in the name of either of the Constituent Corporations or otherwise, any
and all proper deeds, assignments and assurances in law, and do all things
necessary or proper to vest, perfect or confirm title to such property, rights,
privileges, powers, immunities, franchises and interests in the Surviving
Corporation, and otherwise to carry out the provisions of this Agreement.
6. Shares and Manner of Converting Shares.
(a) Katz has outstanding: 173,886 shares of an authorized 283,500
shares of Common Stock, par value $2 per share, entitled to vote as a class; and
34,960 shares of an authorized 50,000 shares of $6.00 Preferred Stock, par value
$10 per share, not entitled to vote except as may be required by law. An
additional 914 shares of such Common Stock are issued and held as treasury
shares.
(b) New Katz has outstanding: 1 share of an authorized 283,500 shares
of Common Stock, par value $2
-4-
<PAGE> 35
per share, entitled to vote as a class; and no shares of an authorized 50,000
shares of $6.00 Preferred Stock, par value $10 per share, not entitled to vote
except as may be required by law.
(c) The number of outstanding shares of New Katz is not subject to
change prior to the Effective Date. The number of outstanding shares of Katz is
subject to change prior to the Effective Date by the sale of shares of its
Common Stock from treasury on exercise of outstanding options.
(d) Each share of New Katz issued or outstanding immediately prior
to the Effective Date shall, by virtue of the merger, automatically be
cancelled and returned to the category of authorized but unissued shares.
(e) Each share of $6.00 Preferred Stock and of Common Stock of Katz
which shall be issued or outstanding immediately prior to the Effective Date
shall, by virtue of the merger and without any action on the part of the holder
thereof, be converted into one share of the same class of stock of the
Surviving Corporation.
(f) Exchange of Shares. After the Effective Date, each holder of an
outstanding certificate or certificates which prior thereto represented shares
of Katz, upon surrender of the same to the Surviving Corporation,
-5-
<PAGE> 36
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of $6.00 Preferred Stock or of Common Stock,
as the case may be, of the Surviving Corporation into which the shares of Katz
shall have been converted as aforesaid. Until so surrendered, each such
outstanding certificate that, prior to the Effective Date, represented shares of
Katz shall be deemed for all corporate purposes to evidence the ownership of the
shares of the Surviving Corporation into which such shares have been converted.
7. Shareholder Approval. This Agreement and the merger contemplated hereby
shall be contingent upon adoption of this Agreement: by vote of the holders of
two-thirds of all outstanding shares of Katz and of each class thereof; and by
the sole stockholder of New Katz.
8. Effective Date. The merger, provided the provisions of the laws of the
States of Delaware and New York applicable hereto will have been satisfied,
shall be effective on July 1, 1974, such date being referred to herein as the
"Effective Date".
9. Abandonment. This Agreement may be terminated and the merger
contemplated hereby abandoned by the Board of Directors of either of the
Constituent Corporations at any time prior to the Effective Date,
notwithstanding shareholder authorization.
-6-
<PAGE> 37
10. New York Certificate of Merger. Subject to the provisions hereof, the
Constituent Corporations shall cause a Certificate of Merger to be executed and
filed with the Department of State of the State of New York. Said Certificate
shall be prepared in accordance with the requirements of section 907(c) of the
Business Corporation Law of the State of New York and shall include, without
limitation: an agreement that the Surviving Corporation may be served with
process in New York in any action or proceeding for the enforcement of any
liability or obligation of Katz and of the right of the shareholders of Katz to
receive payment for their shares against the Surviving Corporation; an agreement
that, subject to the provisions of section 623 of the Business Corporation Law
of the State of New York, the Surviving Corporation will promptly pay to the
shareholders of Katz the amount, if any, to which they shall be entitled under
the provisions of said Law relating to the right of shareholders to receive
payment for their shares; and a designation of the Secretary of State of the
State of New York as the agent of the Surviving Corporation upon whom process
against it may be served.
-7-
<PAGE> 38
State of Delaware
Page 1
Office of the Secretary of State
---------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "THE KATZ AGENCY, INC.", FILED IN THIS OFFICE ON THE TENTH DAY
OF JUNE, A.D. 1974, AT 9 O'CLOCK A.M.
[DELAWARE SECRETARY OF STATE SEAL] /s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
0802393 8100 AUTHENTICATION: 7191999
944138017 DATE: 07-26-94
<PAGE> 39
CERTIFICATE OF INCORPORATION
OF
THE KATZ AGENCY, INC.
1. Name. The name of the corporation (hereinafter sometimes referred to
as the "Corporation") is
THE KATZ AGENCY, INC.
2. Registered Office and Agent. The location of the Corporation's
registered office in Delaware is at 306 South State Street, City of Dover,
County of Kent, Delaware. The name of the registered agent at such address is
the United States Corporation Company.
3. Purposes. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may now or hereafter be organized under
the General Corporation Law of the State of Delaware, including, without
limitation, to act as the agent or representative of media, primarily in the
sale of advertising space or time.
4. Stock. The Corporation shall have authority to issue a total of
333,500 shares of stock, consisting of 283,500 shares, par value $2 per share,
designated Common Stock and 50,000 shares, par value $10 per share, designated
$6.00 Preferred Stock.
The powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of the Common Stock and the $6.00
Preferred Stock are as follows:
A. $6.00 Preferred Stock:
(i) The holders of the $6.00 Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation,
out of any assets of the Corporation available for dividends pursuant to the
laws of the State of Delaware, preferential dividends at the rate of $6.00 per
share per calendar year and no more, payable annually, semi-annually or
quarter-annually on such dates as the Board of Directors of the Corporation may
determine, before any dividends shall be declared or paid upon or set apart for
the Common Stock. If the Corporation shall not in any calendar year pay the
full amount of preferential dividends to the holders of the $6.00 Preferred
<PAGE> 40
Stock, then the amount unpaid in such year, but not in excess of the
Corporation's net profits in such year, shall be accumulated on the books and
records of the Corporation as a debt to the holders of the $6.00 Preferred
Stock.
(ii) The holders of the $6.00 Preferred Stock shall not be entitled
to vote for any purpose except as may be required by law.
(iii) After approval of the Board of Directors, the Corporation may
redeem the whole or any part of the outstanding $6.00 Preferred Stock at any
time, or from time to time, after December 31, 1976, at a price of ONE HUNDRED
DOLLARS ($100.00) per share plus any unpaid accumulated dividends thereon. If
less than all of the shares are to be redeemed, any such redemptions shall be
made from all holders of $6.00 Preferred Stock in proportion to their holdings
on the date fixed for such redemption. Notice of any election to redeem shall
be mailed to each holder of such stock at his address as it appears on the
books of the Corporation not less than 30 days prior to the date upon which the
$6.00 Preferred Stock is to be redeemed. If a valid offer of redemption is
made, the dividends on the shares to be redeemed shall cease to accrue from and
after the designated date of redemption, and all rights with respect to the
$6.00 Preferred Stock called for redemption shall, from and after such
redemption date, cease and terminate, except that the holder thereof shall at
all times have and retain the right to receive the redemption price therefor,
but without interest.
(iv) In the event of any partial or complete liquidation or of the
dissolution or of the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the $6.00 Preferred Stock shall be
entitled, before any of the assets of the Corporation shall be distributed
among or paid over to the holders of any other class of the Corporation's
stock, to be paid ONE HUNDRED DOLLARS per share plus any unpaid accumulated
dividends thereon. If the assets of the Corporation are insufficient to meet
such preferences of the $6.00 Preferred Stock, the entire assets of the
Corporation available for distribution to stockholders shall be distributed,
first in payment of any unpaid accumulated dividends of the $6.00 Preferred
Stock, and, second, ratably among the holders of the $6.00 Preferred Stock in
payment of the liquidation preference of ONE HUNDRED DOLLARS ($100.00) per
share.
B. Common Stock:
(i) The holders of the Common Stock shall be entitled to receive
dividends as may from time to time be
2
<PAGE> 41
declared by the Board of Directors out of funds legally available therefor
after payment of dividends on the $6.00 Preferred Stock for the then current
calendar year and any accumulated unpaid dividends on the $6.00 Preferred Stock.
(ii) In the event of any complete or partial liquidation, or of
the dissolution or the winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of the Common Stock shall be entitled to
the same rate per share of any distribution or other payment after all payments
hereinabove provided to be made have been made to the holders of the $6.00
Preferred Stock.
(iii) At each meeting of stockholders, each holder of shares of
Common Stock shall have one vote for each share of Common Stock standing in his
name on the books of the Corporation.
5. INCORPORATOR. The name and mailing address of the incorporator are as
follows: James M. Neeley, c/o Battle, Fowler, Lidstone, Jaffin, Pierce & Kheel,
280 Park Avenue, New York, N.Y. 10017.
6. BY-LAWS. The Board of Directors of the Corporation from time to time
may make, alter or repeal by-laws of the Corporation, except as such power may
be limited by any one or more by-laws adopted by the stockholders.
7. ELECTION AND REMOVAL OF DIRECTORS. Elections of directors of the
Corporation need not be by written ballot unless the by-laws of the Corporation
will so provide. The stockholders at any time may remove any or all of the
directors of the Corporation, with or without cause.
8. CREDITORS ARRANGEMENTS. 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 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 this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class
3
<PAGE> 42
of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case many 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.
IN WITNESS WHEREOF, the undersigned sole incorporator has signed this
Certificate this 7th day of June 1974.
/s/ James M. Neeley
-------------------------
James M. Neeley
4
<PAGE> 1
EXHIBIT 3.105
BY LAWS
OF
KATZ COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
The following By-laws are hereby adopted effective as of January 27, 1992
subject to the provisions of that certain stockholders' agreement dated as of
May 2, 1990, as amended, among Katz Acquisition Corp., a Delaware corporation
and this Corporation's parent ("Parent"), the Corporation and certain
purchasers of Parent's securities and certain employees of the Corporation.
ARTICLE I - OFFICES
The office of the Corporation shall be located in the City and State
designated in the Certificate of Incorporation. The Corporation may also
maintain offices at such other places within or without the United States as
the Board of Directors may, from time to time, determine.
ARTICLE II - MEETING OF STOCKHOLDERS
Section 1 - Annual Meetings.
The annual meeting of the stockholders of the Corporation shall be held
within five months after the close of the fiscal year of the Corporation, for
the purpose of electing directors, and transacting such other business as may
properly come before the meeting.
Section 2 - Special Meetings.
Special meetings of the stockholders may be called at any time by the
Board of Directors or by the President, and shall be called by the President or
the Secretary at the written request of holders of twenty-five percent (25%) of
the shares then outstanding and entitled to vote thereat, or as otherwise
required by statute.
Section 3 - Place of Meetings.
All meetings of stockholders shall be held at the principal office of the
Corporation, or at such other places as shall be designated in the notices or
waivers of notice of such meetings.
<PAGE> 2
Section 4 - Notice of Meetings.
(a) Except as otherwise provided by statute, written notice of each
meeting of stockholders, whether annual or special, stating the time when and
place where it is to be held, shall be served either personally or by mail, not
less than ten or more than sixty days before the meeting, and to any other
stockholder to whom the giving of notice may be required by law. Notice of a
special meeting shall also state the purpose or purposes for which the meeting
is called, and shall indicate that it is being issued by, or at the direction
of, the person or persons calling the meeting. If, at any meeting, action is
proposed to be taken that would, if taken, entitle stockholders to receive
payment for their shares pursuant to statute, the notice of such meeting shall
include a statement of that purpose and to that effect. If mailed, such notice
shall be directed to each such stockholder at his address, as it appears on the
records of the stockholders of the Corporation, unless he shall have previously
filed with the Secretary of the Corporation a written request that notices
intended for him be mailed to some other address, in which case, it shall be
mailed to the address designated in such request. Any mailed notices shall be
deemed delivered when deposited in the United States mail.
(b) Notice of any meeting need not be given to any person who may become a
stockholder of record after the mailing of such notice and prior to the
meeting, or to any stockholder who attends such meeting, in person or by proxy,
or to any stockholder who, in person or by proxy, submits a signed waiver of
notice either before or after such meeting. Notice of any adjourned meeting of
stockholders need not be given, unless otherwise required by statute.
Section 5 - Quorum.
(a) Except as otherwise provided herein, by statute, or in the Certificate
of Incorporation (such Certificate and any amendments thereof being hereinafter
collectively referred to as the "Certificate of Incorporation"), at all
meetings of stockholders of the Corporation, the presence at the commencement
of such meetings in person or by proxy of stockholders holding of record a
majority of the total number of shares of the Corporation then issued and
outstanding and entitled to vote, shall be necessary and sufficient to
constitute a quorum for the transaction of any business. The withdrawal of any
stockholder 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) Despite the absence of a quorum at any annual or special meeting of
stockholders, the stockholders, by a majority of the votes cast by the holders
of shares entitled to vote
-2-
<PAGE> 3
thereon, may adjourn the meeting. At any such adjourned meeting at which a
quorum is present, any business may be transacted at the meeting as originally
called if a quorum has been present.
SECTION 6 - VOTING.
(a) Except as otherwise provided by statute or by the Certificate of
Incorporation, any corporate action, other than the election of directors, to be
taken by vote of the stockholders, shall be authorized by a majority of votes
cast at a meeting of stockholders by the holders of shares entitled to vote
thereon.
(b) Except as otherwise provided by statute or by the Certificate of
Incorporation, at each meeting of stockholders, each holder of record of stock
of the Corporation entitled to vote thereat, shall be entitled to one vote for
each share of stock registered in his name on the books of the Corporation.
(c) Each stockholder entitled to vote or to express consent or dissent
without a meeting, may do so by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
stockholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the person executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records of
the Corporation.
(d) Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the
meeting and vote of stockholders may be dispensed with if all of the
stockholders who would have been entitled to vote upon the action if such
meeting were held shall consent in writing to such corporate action being taken;
or if the Certificate of Incorporation authorizes the action to be taken with
the written consent of the holders of less than all of the stockholders who
would have been entitled to vote upon the action if a meeting were held, then on
the written consent of the stockholders having not less than such percentage of
the total number of votes as may be authorized in the Certificate of
Incorporation; provided that in no case shall the written consent be by the
holders of stock having less than the minimum percentage of the total required
by statute for the proposed corporate action, and provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SECTION 7 - ADJOURNMENT.
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At any meeting of stockholders of the Corporation, if less than a quorum
be present, a majority of the votes cast by stockholders entitled to vote
thereat, present in person or by proxy, shall adjourn the meeting from time to
time without notice other than announcement at the meeting until a quorum shall
be present. Any business may be transacted at the adjourned meeting which might
have been transacted at the meeting originally noticed. If the adjournment is
for more than thirty days, or if after the adjournment a new record date, as
provided for in Section 4 of Article V of these By-Laws, 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.
ARTICLE III - BOARD OF DIRECTORS
SECTION 1 - NUMBER, ELECTION AND TERM OF OFFICE.
(a) The number of directors of the Corporation shall not be less than
three (3) or more than nine (9).
(b) Except as may otherwise be provided in the Certificate of
Incorporation, the members of the Board of Directors of the Corporation, who
need not be stockholders, shall be elected by a majority of the votes cast at a
meeting of stockholders, by the holders of shares, present in person or by
proxy, entitled to vote in the election.
(c) Each director shall hold office until the annual meeting of the
stockholders next succeeding his election, and until his successor is elected
and qualified, or until his prior death, resignation or removal.
SECTION 2 - DUTIES AND POWERS.
The Board of Directors shall be responsible for the control and management
of the business, property and interests of the Corporation and the Board of
Directors may exercise all powers of the Corporation, except as are in the
Certificate of Incorporation or by statute expressly conferred upon or reserved
to the stockholders, shall be exercised by the Board of Directors.
SECTION 3 - ANNUAL AND REGULAR MEETING; NOTICE.
(a) A regular annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the stockholders, at the place of
such annual meeting of stockholders.
(b) The Board of Directors, from time to time, may provide by resolution
for the holding of other regular meetings
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of the Board of Directors, and may fix the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors shall not be
required to be given and, if given, need not specify the purpose of the
meeting; provided, however, that in case the Board of Directors shall fix or
change the time or place of any regular meeting, notice of such action shall be
given to each director who shall not have been present at the meeting at which
such action was taken within the time limited, and in the manner set forth in
paragraph (b) Section 4 of this Article III, with respect to special meetings,
unless such notice shall be waived in the manner set forth in paragraph (c) of
such Section 4.
SECTION 4 - SPECIAL MEETINGS; NOTICE.
(a) Special meetings of the Board of Directors shall be held whenever
called by the President or by one of the directors, at such time and place as
may be specified in the respective notices or waivers of notice thereof.
(b) Except as otherwise required by statute, notice of special meetings
shall be mailed directly to each director, addressed to him at his residence or
usual place of business, at least two (2) days before the day on which the
meeting is to be held, or shall be sent to him at such place by telegram, radio
or cable, or shall be delivered to him personally or given to him orally, not
later than the day before the day on which the meeting is to be held. A notice,
or waiver of notice, except as required by Section 8 of this Article III, need
not specify the purpose of the meeting.
(c) Notice of any special meeting shall not be required to be given to any
director who shall attend such meeting without protesting prior thereto or at
its commencement, the lack of notice to him, or who submits a signed waiver of
notice, whether before or after the meeting. Notice of any adjourned meeting
shall not be required to be given.
SECTION 5 - CHAIRMAN.
At all meetings of the Board of Directors, the Chairman of the Board, if
any and if present, shall preside. If there shall be no Chairman, or he shall
be absent, then the President shall preside, and in his absence, a Chairman
chosen by the directors shall preside.
SECTION 6 - QUORUM AND ADJOURNMENTS.
(a) At all meetings of the Board of Directors, the presence of a majority
of the entire Board shall be necessary and
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sufficient to constitute a quorum for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws.
(b) A majority of the directors present at the time and place of any
regular or special meeting, although less than a quorum, may adjourn the same
from time to time without notice, until a quorum shall be present.
SECTION 7 - MANNER OF ACTING.
(a) At all meetings of the Board of Directors, each director present shall
have one vote, irrespective of the number of shares of stock, if any, which he
may hold.
(b) Except as otherwise provided by statute, by the Certificate of
Incorporation or by these By-Laws, the action 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. Any action authorized, in writing, by all of the directors
entitled to vote thereon and filed with the minutes of the Corporation shall be
the act of the Board of Directors with the same force and effect as if the same
has been passed by unanimous vote at a duly called meeting of the Board.
SECTION 8 - VACANCIES.
Any vacancy in the Board of Directors occurring by reason of an increase
in the number of directors, of by reason of the death, resignation,
disqualification, removal (unless a vacancy created by the removal of a
director by the stockholders shall be filled by the stockholders at the meeting
at which the removal was effected) or inability to act of any director, or
otherwise, shall be filled for the unexpired portion of the term by a majority
vote of the remaining directors, though less than a quorum, at any regular
meeting or special meeting of the Board of Directors called for that purpose.
SECTION 9 - RESIGNATION.
Any director may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors of such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 10 - REMOVAL.
Any director may be removed with or without cause at any time by the
affirmative vote of stockholders holding of record in the aggregate at least a
majority of the outstanding
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shares of the Corporation at a special meeting of the stockholders called for
that purpose, and may be removed for cause by action of the Board.
SECTION 11 - SALARY.
No stated salary shall be paid to directors, as such, 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 regular or special
meeting of the Board; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 12 - COMMITTEES.
The Board of Directors, by resolution adopted by a majority of the entire
Board, may from time to time designate from among its members an executive
committee and such other committees, and alternate members thereof, as they may
deem desirable, each consisting of three or more members, with such powers and
authority (to the three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in such resolution. Each such
committee shall serve at the pleasure of the Board.
SECTION 13 - TELEPHONIC MEETING.
Unless otherwise restricted by the Certificate of Incorporation, members
of the Board, or any committee designated by the Board, may participate in a
meeting by means of conference telephone or similar communications equipment in
which all persons participating in the meeting can hear each other.
Participation in such telephonic meeting shall constitute the presence in
person at such meeting.
ARTICLE IV - OFFICERS
SECTION 1 - NUMBER, QUALIFICATIONS,
ELECTION AND TERM OF OFFICE.
(a) The officers of the Corporation shall consist of a Chairman of the
Board of Directors, a President, a Chief Executive Officer, an Executive Vice
President, a Chief Operating Officer, a Secretary, and such other officers,
including one or more Vice Presidents, as the Board of Directors, subject to
the Stockholders' Agreement, may from time to time deem advisable. Any officer
other than the Chairman of the Board of Directors may be, but is not required
to be, a director of the Corporation. Any two or more offices may be held by
the same person.
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(b) THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors. In addition, the Chairman of the Board
shall have and exercise such further powers and duties as from time to time may
be prescribed in these by-laws or by the Board of Directors.
(c) THE PRESIDENT. The President shall have and exercise such powers and
duties as from time to time may be prescribed in these by-laws or by the Board
of Directors.
(d) THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have supervision of and
responsibility for all the property, business and affairs of the Corporation
and shall see that the policies and programs adopted or approved by the Board
of Directors are carried out.
(e) THE CHIEF OPERATING OFFICER. The Chief Operating Officer shall,
subject to the control of the Board of Directors and the Chief Executive
Officer, have active management and supervision over the business of the
Corporation and shall see that the policies and programs adopted or approved by
the Board are carried out.
(f) VICE PRESIDENT. Each Vice President shall have and exercise such
powers and duties as from time to time may be conferred upon them by the Board
of Directors or by the Chief Executive Officer.
(g) THE SECRETARY. It shall be the duty of the Secretary (i) to keep or
cause to be kept an original or duplicate record of the proceedings of the
stockholders and the Board of Directors and a copy of the certificate of
incorporation of the corporation and of these by-laws; (ii) to attend to the
giving of notices of the Corporation as may be required by law or these by-laws;
(iii) to be custodian of the Corporation's contracts, policies, leases, deeds
and other indicia of title, and all other non-financial business records; (iv)
to be custodian of the seal of the Corporation and see that the seal is affixed
to such documents as may be required; (v) to have charge of and keep at the
principal executive office of the Corporation, or cause to be kept at the office
of a transfer agent or registrar, the stock books of the Corporation, and an
original or duplicate stock ledger, giving the names of the stockholders in
alphabetical order and showing their respective addresses, the number and date
of each certificate issued for shares and the date of cancellation of every
certificate surrendered for cancellation; and (vi) to perform all duties
incident to the office of Secretary and such other duties as may from time to
time be prescribed by the Board of Directors or the Chief Executive Officer.
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(h) The officers of the Corporation shall be elected by the Board of
Directors at the regular annual meeting of the Board following the annual
meeting of stockholders.
(i) Each officer shall hold office until the annual meeting of the Board
of Directors next succeeding his election, and until his successor shall have
been elected and qualified, or until his death, resignation or removal.
Section 2 -- Resignation.
Any officer may resign at any time by giving written notice of such
resignation to the Board of Directors, or to the President or the Secretary of
the Corporation. Unless otherwise specified in such written notice, such
resignation shall take effect upon receipt thereof by the Board of Directors or
by such officer, and the acceptance of such resignation shall not be necessary
to make it effective.
Section 3 -- Removal.
Any officer may be removed, either with or without cause, and a successor
elected by a majority vote of the Board of Directors at any time.
Section 4 -- Vacancies.
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the term by a majority vote of the Board of Directors.
Section 5 -- Duties of Officers.
Officers of the Corporation shall, unless otherwise provided by the Board
of Directors, each have such powers and duties as generally pertain to their
respective offices as well as such powers and duties as may be set forth in
these by-laws, or may from time to time be specifically conferred or imposed by
the Board of Directors. The President shall be the chief executive officer of
the Corporation.
Section 6 -- Sureties and Bonds.
In case the Board of Directors shall so require, any officer, employee or
agent of the Corporation shall execute and deliver to the Corporation a bond in
such sum, and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting for
all property, funds or securities of the Corporation which may come into his
hands.
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Section 7 -- Shares of Other Corporations.
Whenever the Corporation is the holder of shares of any other
Corporation, any right or power of the Corporation as such shareholder
(including the attendance, acting and voting at stockholders' meetings and
execution of waivers, consents, proxies or other instruments) may be exercised
on behalf of the Corporation by the President, any Vice President, or such
other person as the Board of Directors may authorize.
ARTICLE V -- SHARES OF STOCK
Section 1 -- Certificate of Stock.
(a) The certificates representing shares of the Corporation shall be in
such form as shall be adopted by the Board of Directors and shall be numbered
and registered in the order issued. They shall bear the holder's name and the
number of shares, and shall be signed by (i) the Chairman of the Board or the
President or a Vice President, and (ii) the Secretary or Treasurer, or any
Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.
(b) No certificate representing shares shall be issued until the full
amount of consideration therefor has been paid, except as otherwise permitted
by law.
(c) To the extent permitted by law, the Board of Directors may authorize
the issuance of certificates for fractions of a share which shall entitle the
holder to exercise voting rights, receive dividends and participate in
liquidating distributions, in proportion to the fractional holdings; or it may
authorize the payment in cash of the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined; or it
may authorize the issuance, subject to such conditions as may be permitted by
law, of scrip in registered or bearer form over the signature of an officer or
agent of the Corporation, exchangeable as therein provided for full shares, by
such scrip shall not entitle the holder to any rights of a shareholder, except
as therein provided.
Section 2 -- Lost or Destroyed Certificates.
The holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it, alleged to have been
lost or destroyed. On production of such evidence of loss or destruction as the
Board of Directors in its discretion may require, the Board of Directors may,
in its discretion, require the owner of the lost or destroyed certificate, or
his legal
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representatives, to give the Corporation a bond in such sum as the Board may
direct, and with such surety or sureties as may be satisfactory to the Board,
to indemnify the Corporation against any claims, loss, liability or damage it
may suffer on account of the issuance of the new certificate. A new certificate
may be issued without requiring any such evidence or bond when, in the judgment
of the Board of Directors, it is proper so to do.
Section 3 - Transfers of Shares.
(a) Transfers of shares of the Corporation shall be made on the share
records of the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of the
certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer
and of payment of applicable transfer taxes as the Corporation or its agents
may require.
(b) The Corporation shall be entitled to treat the holder of record of any
share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, 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 expressly provided by law.
Section 4 - Record Date.
In lieu of closing the share records of the Corporation, the Board of
Directors may fix, in advance, a date not exceeding sixty days, nor less than
ten days, as the record date for the determination of stockholders entitled to
receive notice of, or to vote at, any meeting of stockholders, or to consent to
any proposal without a meeting, or for the purpose of determining stockholders
entitled to receive payment of any dividends, or allotment of any rights, or for
the purpose of any other action. If no record date is fixed, the record date for
the determination of 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 no notice is given, the day on which the
meeting is held; the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date for the
adjourned meeting.
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ARTICLE VI - DIVIDENDS
Subject to applicable law and the Certificate of Incorporation, dividends
may be declared and paid out of any funds available therefor, as often, in such
amounts, and at such time or times as the Board of Directors may determine.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of
Directors from time to time, subject to applicable law.
ARTICLE VIII - CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved
from time to time by the Board of Directors.
ARTICLE IX - AMENDMENTS
Section 1 - By Stockholders.
Except as otherwise provided in the By-Laws, all by-laws of the
Corporation shall be subject to alteration or repeal, and new by-laws may be
made, by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares entitled to vote in the
election of directors at any annual or special meeting of stockholders,
provided that the notice or waiver of notice of such meeting shall have
summarized or set forth in full therein, the proposed amendment.
Section 2 - By Directors.
Except as otherwise provided in the By-laws, the Board of Directors shall
have power to make, adopt, alter, amend and repeal, from time to time, by-laws
of the Corporation; provided, however, that the stockholders entitled to vote
with respect thereto as in this Article IX above-provided may alter, amend or
repeal by-laws made by the Board of Directors, except that the Board of
Directors shall have no power to change the quorum for meetings of stockholders
or of the Board of Directors, or to change any provisions of the by-laws with
respect to the removal of directors or the filing of vacancies in the Board
resulting from the removal by the stockholders. If any by-law 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
stockholders for the election of directors, the by-law so adopted, amended or
repealed, together with a concise statement of the changes made.
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ARTICLE X - INDEMNITY
Section 1 - Indemnification.
The Corporation hereby agrees to hold harmless and indemnify any of its
officers, directors, employees or agents from and against, and to reimburse such
persons for, any and all judgments, fines, liabilities, amounts paid in
settlement and expenses, including attorneys' fees, incurred directly or
indirectly as a result of or in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal administrative or
investigative, whether or not such action, suit or proceeding is by or in the
right of any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise for
which such person served in any capacity at the request of the Corporation, to
which such persons is, was or at any time becomes a party, or is threatened to
be made a party, or as a result of or in connection with any appeal therein, by
reason of the fact that such person is, was or at any time becomes a director,
officer, employee or agent of the Corporation or is or was serving or at any
time serves such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, whether arising out of any
breach of such person's fiduciary duty as a director, officer, employee or agent
of such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise under any state or federal law or otherwise; provided
however, that (i) indemnification shall be paid pursuant to this Article X if
and only if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; and (ii) no indemnification shall be payable
pursuant to this Article X if a court having jurisdiction in the matter shall
determine that such indemnification is not lawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe his conduct was unlawful. 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 to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
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Section 2 - Continuation of Indemnity.
All agreements and obligations of the Corporation contained herein shall
continue during the period such person shall serve as a director, officer,
employee or agent of the Corporation and shall continue thereafter so long as
such person shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person was a director or officer
of the Corporation or served at the request of the Corporation in any capacity
for any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise.
Section 3 - Advancement and Repayment of Expenses.
Expenses incurred by an officer, director, employee or agent in defending
any threatened or pending action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation in advance of
the final disposition thereof, other than those expenses for which such director
or officer is not entitled to indemnification pursuant to the proviso to, or the
last sentence of, Section 1. of this Article X. The Corporation shall make such
payments upon receipt of (i) a written request made by such person for payment
of such expenses, (ii) an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized herein and (iii) evidence
satisfactory to the Corporation as to the amount of such expenses.
Section 4 - Authorization.
Any indemnification under this Article X (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1 of this Article X. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Corporation.
Section 5 - Notification and Defense of Claim.
Promptly after receipt by a person seeking indemnification pursuant to this
Article X of notice of the commencement of any action, suit or proceeding, such
person will,
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if a claim in respect thereof is to be made against the Corporation under this
Article X, notify the Corporation of the commencement thereof; but the omission
so to notify the Corporation will not relieve it from any liability which it may
have to such person otherwise than under this Article X. With respect to any
such action, suit or proceeding as to which such person notifies the Corporation
of the commencement thereof:
A. The Corporation will be entitled to participate therein at its
own expense; and
B. Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to the person to be indemnified. After notice from the Corporation
to the person to be indemnified of its election so to assume the defense
thereof, the Corporation will not be liable to such person under this Article X
for any legal or other expenses subsequently incurred by such person in
connection with the defense thereof other than reasonable costs of investigation
or as otherwise provided below. The person to be indemnified shall have the
right to employ his or her own counsel in such action, suit or proceeding but
the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of such person
unless (i) the employment of counsel by such person has been authorized by the
Corporation in connection with the defense of such action, (ii) such person
shall have reasonably concluded that there may be a conflict in the defense of
such action, or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for such person shall be borne by the Corporation (it being
understood, however, that the Corporation shall not be liable for the expenses
of more than one counsel for such person in connection with any action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances). The Corporation shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
on behalf of the Corporation or as to which such person shall have made the
conclusion provided for in (ii) above.
C. Anything in this Section 5 to the contrary notwithstanding,
the Corporation shall not be liable to indemnify any person seeking
indemnification under this Article X for any amounts paid in settlement of any
action or claim effected without its written consent. The Corporation shall not
settle any action or claim in any manner which would impose any penalty or
limitation on the person to be indemnified without such person's written
consent. Neither the Corporation nor any such
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person will unreasonable withhold their consent to any proposed settlement.
Section 6 - Nonexclusivity.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article X shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the General Corporation Law of the State of Delaware, the Corporation's
Certificate of Incorporation, as amended, the Corporation's By-Laws, as now in
effect or as hereafter amended, any agreement, any vote of stockholders or
directors, any applicable law, or otherwise.
Section 7 - Indemnification of Other Expenses.
In the event any person seeking indemnification hereunder is required
to bring any action to enforce rights or to collect monies due under this
Article X and is successful in such action, the Corporation shall reimburse such
person for all costs and expenses, including attorney's fees, incurred by such
person in connection with such action.
Section 8 - Length of Effectiveness.
The indemnification and advancement of expense provided by or granted
pursuant to this By-Law 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.
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EXHIBIT 3.106
State of Delaware PAGE 1
Office of the Secretary of State
---------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "KATZ MILLENNIUM MARKETING INC.", FILED IN THIS OFFICE ON THE
ELEVENTH DAY OF JUNE, A.D. 1996, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[DELAWARE SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2632759 8100 AUTHENTICATION: 7999379
960169530 DATE: 06-24-96
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
KATZ MILLENNIUM MARKETING INC.
THE UNDERSIGNED, in order to form a corporation for the purposes herein
stated, under and pursuant to the provisions of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation is Katz Millennium Marketing Inc.
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation is to be located at 1013
Centre Road, in the City of Wilmington, in the County of New Castle, in the
State of Delaware. The name of its registered agent at that address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity, without limitation, for which a corporation may be organized under
the General Corporation Law of the State of Delaware.
FOURTH: The aggregate number of shares of all classes of stock which the
Corporation is authorized to issue is One Thousand (1,000) shares, designated
Common Stock, of the par value of One Dollar ($1.00) per share.
FIFTH: The name and mailing address of the incorporator is:
NAME ADDRESS
---- -------
Susan E. Todd c/o Battle Fowler LLP
75 East 55th Street
New York, New York 10022
<PAGE> 3
SIXTH: The election of directors need not be by written ballot unless the
By-laws so provide.
SEVENTH: The Board of Directors of the Corporation is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
By-laws of the Corporation, except as such power may be restricted or limited
by the General Corporation Law of the State of Delaware.
EIGHTH: 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
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 this 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 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 a 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 stock-
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holders or class of stockholders, of this Corporation, as the case may be, and
also on this Corporation.
NINTH: No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for 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 faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit.
TENTH: The Corporation shall, to the fullest extent permitted by the
provisions of Section 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 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 By-law, 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 person.
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IN WITNESS WHEREOF, I have hereunto set my hand the 11th day of June, 1996.
/s/ Susan E. Todd
------------------------------
Susan E. Todd, Sole Incorporator
75 East 55th Street
New York, New York 10022
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EXHIBIT 3.107
BY-LAWS
OF
KATZ MILLENNIUM MARKETING INC.
(a Delaware corporation)
ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its registered
office in the State of Delaware at 1013 Centre Road, in the City of Wilmington,
in the County of New Castle, and its resident agent at such address is The
Prentice-Hall Corporation System, Inc. The Corporation may also have offices in
such other places in the United States or elsewhere as the Board of Directors
may, from time to time, appoint or as the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may properly be conducted
at such meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors shall determine
by resolution and set forth in the notice of the meeting. In the event that the
Board of Directors fails to so determine the time,
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date and place for the annual meeting, it shall be held, beginning in 1997, at
the principal office of the Corporation at 10 o'clock A.M. on the last Friday in
June of each year.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the Chairman of the Board, the
President or by resolution of the Board of Directors and shall be called by the
President or Secretary upon the written request of not less than 10% in interest
of the stockholders entitled to vote thereat. Notice of each special meeting
shall be given in accordance with Section 3 of this Article II. Unless otherwise
permitted by law, business transacted at any special meeting of stockholders
shall be limited to the purpose stated in the notice.
SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting,
which shall state the place, date and time of the meeting, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be mailed
to or delivered to each stockholder of record entitled to vote thereat. Such
notice shall be given not less than ten (10) days nor more than sixty (60) days
before the date of any such meeting.
SECTION 4. QUORUM. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority of the issued and
outstanding stock entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all meetings
of stockholders.
SECTION 5. VOTING. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Upon the request of not less than 10% in
interest of the stock-
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holders entitled to vote at a meeting, voting shall be by written ballot. All
elections of directors shall be decided by plurality vote. Unless otherwise
required by law, these By-Laws or the Certificate of Incorporation, all other
corporate action shall be decided by majority vote.
SECTION 6. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting may, or if inspectors shall not have
been appointed, the chairman of the meeting shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
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 results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors.
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SECTION 7. CHAIRMAN OF MEETINGS. The Chairman of the Board of
Directors of the Corporation, if one is elected, or, in his absence or
disability, the President of the Corporation, shall preside at all meetings of
the stockholders.
SECTION 8. SECRETARY OF MEETING. The Secretary of the Corporation
shall act as Secretary at all meetings of the stockholders. In the absence or
disability of the Secretary, the Chairman of the Board of Directors or the
President shall appoint a person to act as Secretary at such meetings.
SECTION 9. LISTS OF STOCKHOLDERS. 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 entitled to
vote at the meeting, arranged in alphabetical order, showing the address of each
stockholder and the number and class of shares held by each. 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 where the meeting is to be
held, which 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 meeting and may be inspected by any stockholder who is
present.
SECTION 10. ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required by law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
such meetings, 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
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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 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.
SECTION 11. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or 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. Any business may be transacted at
the adjourned meeting which might have been transacted at the meeting originally
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date, as provided for in Section 5 of Article V of
these By-Laws, 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.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the
Corporation shall be managed and controlled by its Board of Directors. The Board
shall exercise all of the powers and duties conferred by law except as provided
by the Certificate of Incorporation or these By-Laws.
SECTION 2. NUMBER AND TERM. The number of directors shall be fixed at
no less than one nor more than nine. Within the limits specified above, the
number of
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directors shall be fixed from time to time by the Board. The Board of Directors
shall be elected by the stockholders at their annual meeting, and each director
shall be elected to serve for the term of one year and until his successor shall
be elected and qualify or until his earlier resignation or removal. Directors
need not be stockholders.
SECTION 3. RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 4. REMOVAL. Any director or the entire Board of Directors may
be removed either for or without cause at any time by the affirmative vote of
the holders of a majority of the shares entitled to vote for the election of
directors at any annual or special meeting of the stockholders called for that
purpose. Vacancies thus created may be filled at such meeting by the affirmative
vote of a majority of the stockholders entitled to vote, or, if the vacancies
are not so filled, by the directors as provided in Section 5 of this Article
III.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except as
provided in Section 4 of this Article III, vacancies occurring in any
directorship and newly created directorships may be filled by a majority vote of
the remaining directors then in office. Any director so chosen shall hold office
for the unexpired term of his predecessor and until his successor shall be
elected and qualify or until his earlier death, resignation or removal. The
Board may not fill the vacancy created by removal of a director by electing the
director so removed.
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SECTION 6. MEETINGS. The newly elected directors shall hold their
first meeting to organize the Corporation, elect officers and transact any other
business which may properly come before the meeting. An annual organizational
meeting of the Board of Directors shall be held immediately after each annual
meeting of the stockholders, or at such time and place as may be noticed for the
meeting.
Regular meetings of the Board may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board shall be called by the President or by
the Secretary on the written request of any director with at least two days'
notice to each director and shall be held at such place as may be determined by
the directors or as shall be stated in the notice of the meeting.
SECTION 7. QUORUM, VOTING AND ADJOURNMENT. A majority of the total
number of directors or any committee thereof shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum, a majority of the directors present thereat may adjourn
such meeting to another time and place. Notice of such adjourned meeting need
not be given if the time and place of such adjourned meeting are announced at
the meeting so adjourned.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the Board, designate one or more committees, including
but not limited to an Executive Committee and an Audit Committee, each such
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more
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directors as alternate members of any committee to replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board, 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 to all papers which may require it; but no such
committee shall have the power or authority to amend the Certificate of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's properties and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution or to amend these By-Laws.
Unless a resolution of the Board expressly provides, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock of the Corporation. All committees of the Board shall report their
proceedings to the Board when required.
SECTION 9. ACTION WITHOUT A MEETING. Unless otherwise restricted by
the Certificate 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
any committee thereof consent thereto in writing.
SECTION 10. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of directors for their services. A director
may also serve the Corporation in other capacities and receive compensation
therefor.
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SECTION 11. TELEPHONIC MEETING. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board, or any committee designated
by the Board, may participate in a meeting by means of conference telephone or
similar communications equipment in which all persons participating in the
meeting can hear each other. Participation in such telephonic meeting shall
constitute the presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall include a President
and a Secretary, both of whom shall be elected by the Board of Directors and who
shall hold office for a term of one year and until their successors are elected
and qualify or until their earlier resignation or removal. In addition, the
Board of Directors may elect a Chairman of the Board, one or more Vice
Presidents, including an Executive Vice President, a Treasurer and one or more
Assistant Treasurers and one or more Assistant Secretaries, who shall hold their
office for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors. The initial
officers shall be elected at the first meeting of the Board of Directors and,
thereafter, at the annual organizational meeting of the Board held after each
annual meeting of the stockholders. Any number of offices may be held by the
same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it deems advisable, who shall hold
their office
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for such terms and shall exercise and perform such powers and duties as shall be
determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors shall be
a member of the Board and shall preside at all meetings of the Board of
Directors and of the stockholders. In addition, the Chairman of the Board shall
have such powers and perform such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation. He shall exercise such duties as customarily pertain
to the office of President and Chief Executive Officer, and shall have general
and active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board. He shall perform such other
duties as prescribed from time to time by the Board or these By-Laws.
In the absence, disability or refusal of the Chairman of the Board to
act, or the vacancy of such office, the President shall preside at all meetings
of the stockholders and of the Board of Directors. Except as the Board of
Directors shall otherwise authorize, the President shall execute bonds,
mortgages and other contracts on behalf of the Corporation, and shall cause the
seal to be affixed to any instrument requiring it and, when so affixed, the seal
shall be attested by the signature of the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE PRESIDENTS. Each Vice President, if any are elected,
of whom one or more may be designated an Executive Vice President, shall have
such powers
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and shall perform such duties as shall be assigned to him by the President or
the Board of Directors.
SECTION 6. TREASURER. The Treasurer shall have custody of the
corporate funds, securities, evidences of indebtedness and other valuables of
the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables 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, taking
proper vouchers therefor. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe.
The Treasurer shall have such further powers and perform such other
duties incident to the office of Treasurer as from time to time are assigned to
him by the Board.
SECTION 7. SECRETARY. The Secretary shall be the Chief Administrative
Officer of the Corporation and shall: (a) cause minutes of all meetings of the
stockholders and directors to be recorded and kept; (b) cause all notices
required by these By-Laws or otherwise to be given properly; (c) see that the
minute books, stock books, and other nonfinancial books, records and papers of
the Corporation are kept properly; and (d) cause all reports, statements,
returns, certificates and other documents to be prepared and filed when and as
required. The Secretary shall have such further powers and perform such other
duties as prescribed from time to time by the Board.
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SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each
Assistant Treasurer and each Assistant Secretary, if any are elected, shall be
vested with all the powers and shall perform all the duties of the Treasurer and
Secretary, respectively, in the absence or disability of such officer, unless or
until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform
such duties as shall be assigned to them by the Board.
SECTION 9. CORPORATE FUNDS AND CHECKS. The funds of the Corporation
shall be kept in such depositories as shall from time to time be prescribed by
the Board of Directors. All checks or other orders for the payment of money
shall be signed by the President or the Treasurer or such other person or agent
as may from time to time be authorized and with such countersignature, if any,
as may be required by the Board of Directors.
SECTION 10. CONTRACTS AND OTHER DOCUMENTS. The President or
Treasurer, or such other officer or officers as may from time to time be
authorized by the Board of Directors, shall have power to sign and execute on
behalf of the Corporation deeds, conveyances and contracts, and any and all
other documents requiring execution by the Corporation.
SECTION 11. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The President
or the Treasurer, or such other officer or agent as shall be authorized by the
Board of Directors, shall have the power and authority, on behalf of the
Corporation, to attend and to vote at any meeting of stockholders of any
corporation in which the Corporation holds
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stock and may exercise, on behalf of the Corporation, any and all of the rights
and powers incident to the ownership of such stock at any such meeting,
including the authority to execute and deliver proxies and consents on behalf of
the Corporation.
SECTION 12. DELEGATION OF DUTIES. In the absence, disability or
refusal of any officer to exercise and perform his duties, the Board of
Directors may delegate to another officer such powers or duties.
SECTION 13. RESIGNATION AND REMOVAL. Any officer of the Corporation
may be removed from office for or without cause at any time by the Board of
Directors. Any officer may resign at any time in the same manner prescribed
under Section 3 of Article III of these By-Laws.
SECTION 14. VACANCIES. The Board of Directors shall have power to
fill vacancies occurring in any office.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. 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 Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, certifying the number and class of shares of stock in the
Corporation owned by him. Any or all of the signatures on the certificate may be
a facsimile. The Board of Directors shall have the power to appoint one or more
transfer agents and/or registrars for the transfer or registration of
certificates of stock of
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any class, and may require stock certificates to be countersigned or registered
by one or more of such transfer agents and/or registrars.
SECTION 2. TRANSFER OF SHARES. Shares of stock of the Corporation
shall be transferable upon its books by the holders thereof, in person or by
their duly authorized attorneys or legal representatives, upon surrender to the
Corporation by delivery thereof to the person in charge of the stock and
transfer books and ledgers. Such certificates shall be cancelled and new
certificates shall thereupon be issued. A record shall be made of each
transfer. Whenever any transfer of shares 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, both the transferor and transferee request
the Corporation to do so. The Board shall have power and authority to make such
rules and regulations as it may deem necessary or proper concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 3. LOST CERTIFICATES. A new certificate of stock may be
issued in the place of any certificate previously issued by the Corporation,
alleged to have been lost, stolen, destroyed or mutilated, and the Board of
Directors may, in their discretion, require the owner of such lost, stolen,
destroyed or mutilated certificate, or his legal representative, to give the
Corporation a bond, in such sum as the Board may direct, not exceeding double
the value of the stock, in order to indemnify the Corporation against any claims
that may be made against it in connection therewith.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder
thereof, in
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fact, and shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise expressly provided by
law.
SECTION 5. STOCKHOLDERS RECORD DATE. 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, 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 a
record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting. 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.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may at any regular or special meeting, out
of funds legally available therefor, declare dividends upon the stock of the
Corporation. Before the declaration of any dividend, the Board of Directors may
set apart, out of any funds of the Corporation available for dividends, such sum
or sums as from time to time in their discretion may be deemed proper for
working capital or as a reserve fund to meet contingencies or for such other
purposes as shall be deemed conducive to the interests of the Corporation.
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ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever any written notice is required to be
given by law, the Certificate of Incorporation or these By-Laws, such notice, if
mailed, shall be deemed to be given when deposited in the United States mail,
postage prepaid, addressed to the person entitled to such notice at his address
as it appears on the books and records of the Corporation. Such notice may also
be sent by telegram.
SECTION 2. WAIVER OF NOTICE. Whenever notice is required to be given
by law, 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
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any meeting of the stockholders, directors, or members of a
committee of the Board need be specified in any written waiver of notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-Laws may be amended or repealed or
new By-Laws may be adopted by the affirmative vote of a majority of the Board of
Directors at any regular or special meeting of the Board. If any By-Law
regulating an
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impending election of directors is adopted, amended or repealed by the Board,
there shall be set forth in the notice of the next meeting of stockholders for
the election of directors the By-Law(s) so adopted, amended, or repealed,
together with a precise statement of the changes made. By-Laws adopted by the
Board of Directors may be amended or repealed by stockholders.
ARTICLE VIII
SECTION 1. SEAL. The seal of the Corporation shall be circular in
form and shall have the name of the Corporation on the circumference and the
jurisdiction and year of incorporation in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall end
on December 31 of each year, or such other twelve consecutive months as the
Board of Directors may designate.
SECTION 3. INDEMNIFICATION. (i) 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, whether civil, criminal, administrative or
investigative (hereinafter a ,"proceeding"), by reason of the fact that he or
she is or was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director or officer of another corporation
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or
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may hereafter be amended (but, the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, excise taxes
or penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith, and such indemnification shall continue
as to an indemnitee who has ceased to be a director or officer, and shall inure
to the benefit of the indemnitee's heirs, executors and administrators,
provided, however, that, except with respect to proceedings to enforce right to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section 3 shall
be a contract right and shall include the right to be paid by the Corporation
the expenses 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 so requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer shall
be made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section 3 or otherwise.
(ii) The rights to indemnification and to the advancement of expenses
conferred in this Section 3 shall not be exclusive of any other right which any
person may
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<PAGE> 19
have or hereafter acquire under any statute, the certificate of incorporation,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 4. 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.
Date of Adoption: June 12, 1996
-19-
<PAGE> 1
EXHIBIT 3.108
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "BANNER RADIO SALES, INC.", FILED IN THIS OFFICE ON THE
TWENTIETH DAY OF APRIL, A.D. 1987, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386064
DATE: 11-04-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
BANNER RADIO SALES, INC.
THE UNDERSIGNED, in order to form a corporation for the purposes herein
stated, under and pursuant to the provisions of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation is Banner Radio Sales, Inc.
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation is to be located at 229
South State Street in the City of Dover, in the County of Kent in the State of
Delaware. The name of its registered agent at that address is The Prentice-Hall
Corporation System, Inc.
THIRD: 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 the State of Delaware, including, without limitation, to act as the
agent or representative of media, primarily in the sale of advertising time.
FOURTH: The total number of shares of all classes of stock which the
Corporation is authorized to issue is One Thousand (1,000) shares, consisting
entirely of Common Stock, of the par value of One Dollar ($1.00) per share.
<PAGE> 3
FIFTH: The name and mailing address of the sole incorporator is:
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Valerie M. Balandis 280 Park Avenue
New York, New York 10017
</TABLE>
SIXTH: The election of directors need not be by written ballot unless
the By-laws so provide.
SEVENTH: The Board of Directors of the Corporation is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
By-laws of the Corporation, except as such power may be restricted or limited by
the General Corporation Law of the State of Delaware.
EIGHTH: 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
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 this 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 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 value of
the creditors or class
2
<PAGE> 4
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 all the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
NINTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for act or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a
3
<PAGE> 5
director of the Corporation existing at the time of such repeal or modification.
TENTH: 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.
IN WITNESS WHEREOF, I have hereunto set my hand the 16th day of April,
1987.
/s/ VALERIE M. BALANDIS
--------------------------------------
Valerie M. Balandis, Sole Incorporator
280 Park Avenue
New York, New York 10017
4
<PAGE> 6
DATED SUBMITTED 4-20-87
FILED BY: THE PRENTICE-HALL CORPORATION FILE DATE 4-20-87
----------------------------- -------
SYSTEM, INC. TIME 9 A.M.
----------------------------- -------
Date sent 4-21
-----------------------------
Job #MERRYL * NY FILER'S NO. 00012
----------------------------- -------
NAME OF COMPANY BANNER RADIO SALES, INC.
-------------------------------------------------
RESERVATION #
-------------------------------------------------------
FILE NUMBER
-------
TYPE OF DOCUMENT INCORPORATION SECTION NO.
-------
CHANGES NAME
--------------------------
CHANGES AGENT/OFFICE
------------------
STOCK $
-------------------------------
TO $
-------------------------------
Franchise Tax $
- ---- ---------------------------
Filing Fee Tax $ 15.00
----------------
Receiving and Indexing $ 25.00
----------------
NO. 2 Certified Copies $ 20.00
--- ----------------
NO. PAGES (If Prepaid
---
by the Division of Corp.) $
----------------
OTHER $
------------------------------------------- ----------------
OTHER $
------------------------------------------- ----------------
TOTAL $
----------------
28.00
FULLY RECORDED ACKNOWLEDGMENT COPY
<PAGE> 7
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "BANNER RADIO SALES, INC.", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF APRIL, A.D. 1996, AT 10 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386063
DATE: 11-04-98
<PAGE> 8
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
BANNER RADIO SALES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
The present registered agent of the corporation is The Prentice-Hall
Corporation System, Inc. and the present registered office of the corporation
is in the county of New Castle.
The Board of Directors of BANNER RADIO SALES, INC. adopted the following
resolution on the 18th day of APRIL, 1996.
Resolved, that the registered office of BANNER RADIO SALES, INC. in the
state of Delaware be and it hereby is changed to Corporation Trust Center, 1209
Orange Street, in the city of Wilmington, County of New Castle, and the
authorization of the present registered agent of this corporation be and the
same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is
hereby constituted and appointed the registered agent of this corporation at
the address of its registered office.
IN WITNESS WHEREOF, BANNER RADIO SALES, INC. has caused this statement to be
signed by BRIAN C. WATSON, its ASSISTANT SECRETARY, this 18th day of APRIL,
1996.
BANNER RADIO SALES, INC.
/s/ BRIAN C. WATSON
---------------------------------
<PAGE> 9
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "BANNER RADIO SALES, INC.", CHANGING ITS NAME FROM "BANNER RADIO SALES,
INC." TO "AMCAST RADIO SALES, INC.", FILED IN THIS OFFICE ON THE SECOND DAY OF
SEPTEMBER, A.D. 1997, AT 2:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386062
DATE: 11-04-98
<PAGE> 10
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
Banner Radio Sales, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: Banner Radio Sales, Inc. setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment as
follows:
Article first is hereby amended to read as follows,
"FIRST: The name of the corporation is Amcast Radio Sales, Inc."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
<PAGE> 11
IN WITNESS WHEREOF, said Banner Radio Sales, Inc. has caused this
certificate to be signed by Richard E. Vendig, Senior Vice President, on
August 28, 1997.
Banner Radio Sales, Inc.
By /s/ RICHARD E. VENDIG
---------------------------------
Senior Vice President
Richard E. Vendig
<PAGE> 1
EXHIBIT 3.109
B Y - L A W S
OF
BANNER RADIO SALES, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its
registered office in the State of Delaware at 229 South State Street, in the
County of Kent, and its resident agent at such address is United States
Corporation Company. The Corporation may also have offices in such other places
in the United States or elsewhere as the Board of Directors may, from time to
time, appoint or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for
the election of directors and for such other business as may properly be
conducted at such meeting shall be held at such place, either within or without
the State of Delaware, and at such time and date as the Board of Directors
<PAGE> 2
shall determine by resolution and set forth in the notice of the meeting. In the
event that the Board of Directors fails to so determine the time, date and place
for the annual meeting, it shall be held, beginning in 1988, at the principal
office of the Corporation at 10 o'clock A.M. on the last Friday in April of each
year.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called by the Chairman of the
Board, the President or by resolution of the Board of Directors and shall be
called by the President or Secretary upon the written request of not less than
10% in interest of the stockholders entitled to vote thereat. Notice of each
special meeting shall be given in accordance with Section 3 of this Article II.
Unless otherwise permitted by law, business transacted at any special meeting of
stockholders shall be limited to the purpose stated in the notice.
SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting, which shall state the place, date and time of the meeting, and, in the
case of a special meeting, the purposes for which the meeting is called,
-2-
<PAGE> 3
shall be mailed to or delivered to each stockholder of record entitled to vote
thereat. Such notice shall be given not less than ten (10) days nor more than
sixty (60) days before the date of any such meeting.
SECTION 4. QUORUM. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority of the issued and
outstanding stock entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all meetings
of stockholders.
SECTION 5. VOTING. Unless otherwise provided in the Certificate
of Incorporation, each stockholder shall be entitled to one vote for each share
of capital stock held by such stockholder. Upon the request of not less than 10%
in interest of the stockholders entitled to vote at a meeting, voting shall be
by written ballot. All elections of directors shall be decided by plurality
vote. Unless otherwise required by law, these By-Laws or the Certificate of
Incorporation, all other corporate action shall be decided by majority vote.
SECTION 6. INSPECTORS. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof.
-3-
<PAGE> 4
If any of the inspectors so appointed shall fail to appear or act, the chairman
of the meeting may, or if inspectors shall not have been appointed, the chairman
of the meeting shall, appoint one or more inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares of capital stock of the Corporation outstanding
and the voting power of each, the number of shares 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 results, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the chairman of the meeting, the inspectors shall make a report in writing of
any challenge, request or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors.
-4-
<PAGE> 5
SECTION 7. CHAIRMAN OF MEETINGS. The Chairman of the Board of
Directors of the Corporation, if one is elected, or, in his absence or
disability, the President of the Corporation, shall preside at all meetings of
the stockholders.
SECTION 8. SECRETARY OF MEETING. The Secretary of the
Corporation shall act as Secretary at all meetings of the stockholders. In the
absence or disability of the Secretary, the Chairman of the Board of Directors
or the President shall appoint a person to act as Secretary at such meetings.
SECTION 9. LISTS OF STOCKHOLDERS. 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
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of each stockholder and the number and class of shares held by each.
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 where the
meeting is to be held, which 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
-5-
<PAGE> 6
produced and kept at the meeting and may be inspected by any stockholder who is
present.
SECTION 10. ACTION WITHOUT MEETING. Unless otherwise provided by
the Certificate of Incorporation, any action required by law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
such meetings, 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 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.
SECTION 11. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or 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. Any
-6-
<PAGE> 7
business may be transacted at the adjourned meeting which might have been
transacted at the meeting originally noticed. If the adjournment is for more
than thirty days, or if after the adjournment a new record date, as provided for
in Section 5 of Article V of these By-Laws, 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.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the
Corporation shall be managed and controlled by its Board of Directors. The Board
shall exercise all of the powers and duties conferred by law except as provided
by the Certificate of Incorporation or these By-Laws.
SECTION 2. NUMBER AND TERM. The number of directors shall be
fixed at no less than two nor more than ten. Within the limits specified above,
the number of directors shall be fixed from time to time by the Board. The Board
of Directors shall be elected by the stockholders at their annual meeting, and
each director shall be elected to serve for the term of one year and until his
successor shall be elected and qualify or until his earlier resignation or
removal. Directors need not be stockholders.
-7-
<PAGE> 8
SECTION 3. RESIGNATIONS. Any director may resign at any time.
Such resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 4. REMOVAL. Any director or the entire Board of
Directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of the shares entitled to vote for
the election of directors at any annual or special meeting of the stockholders
called for that purpose. Vacancies thus created may be filled at such meeting by
the affirmative vote of a majority of the stockholders entitled to vote, or, if
the vacancies are not so filled, by the directors as provided in Section 5 of
this Article III.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except as
provided in Section 4 of this Article III, vacancies occurring in any
directorship and newly created directorships may be filled by a majority vote of
the remaining directors then in office. Any director so chosen shall hold office
for the unexpired term of his predecessor and until his
-8-
<PAGE> 9
successor shall be elected and qualify or until his earlier death, resignation
or removal. The Board may not fill the vacancy created by removal of a director
by electing the director so removed.
SECTION 6. MEETINGS. The newly elected directors shall hold
their first meeting to organize the Corporation, elect officers and transact any
other business which may properly come before the meeting. An annual
organizational meeting of the Board of Directors shall be held immediately after
each annual meeting of the stockholders, or at such time and place as may be
noticed for the meeting.
Regular meetings of the Board may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board shall be called by the President
or by the Secretary on the written request of any director with at least two
days' notice to each director and shall be held at such place as may be
determined by the directors or as shall be stated in the notice of the meeting.
SECTION 7. QUORUM, VOTING AND ADJOURNMENT. A majority of the
total number of directors or any committee thereof shall constitute a quorum for
the transaction of business. The
-9-
<PAGE> 10
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum, a majority of
the directors present thereat may adjourn such meeting to another time and
place. Notice of such adjourned meeting need not be given if the time and place
of such adjourned meeting are announced at the meeting so adjourned.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the Board, designate one or more committees, including
but not limited to an Executive Committee and an Audit Committee, each such
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee
to replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board, 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 to all papers which may require it;
but no such committee shall have the power or authority to amend the Certificate
of Incorporation, adopt an agreement of merger or
-10-
<PAGE> 11
consolidation, recommend to the stockholders the sale, lease, or exchange of all
or substantially all of the Corporation's properties and assets, recommend to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution or to amend these By-Laws. Unless a resolution of the Board
expressly provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock of the Corporation. All
committees of the Board shall report their proceedings to the Board when
required.
SECTION 9. ACTION WITHOUT A MEETING. Unless otherwise restricted
by the Certificate 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
any committee thereof consent thereto in writing.
SECTION 10. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of directors for their services. A director
may also serve the Corporation in other capacities and receive compensation
therefor.
SECTION 11. TELEPHONIC MEETING. Unless otherwise restricted by
the Certificate of Incorporation, members of the Board, or any committee
designated by the Board, may
-11-
<PAGE> 12
participate in a meeting by means of conference telephone or similar
communications equipment in which all persons participating in the meeting can
hear each other. Participation in such telephonic meeting shall constitute the
presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall include a
President, a Secretary and one or more subordinate officers, all of whom shall
be elected by the Board of Directors and who shall hold office for a term of one
year and until their successors are elected and qualify or until their earlier
resignation or removal. In addition, the Board of Directors may elect a Chairman
of the Board, one or more Vice Presidents, including an Executive Vice
President, a Treasurer and one or more Assistant Treasurers and one or more
Assistant Secretaries, who shall hold their office for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors. The initial officers shall be elected at the
first meeting of the Board of Directors and, thereafter, at the annual
organizational meeting of the Board held after each annual meeting of the
-12-
<PAGE> 13
stockholders. Any number of offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it deems advisable, who shall hold
their office for such terms and shall exercise and perform such powers and
duties as shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors
shall be a member of the Board and shall preside at all meetings of the Board of
Directors and of the stockholders. In addition, the Chairman of the Board shall
have such powers and perform such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation. He shall exercise such duties as customarily pertain
to the office of President and Chief Executive Officer, and shall have general
and active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board. He shall perform such other
duties as prescribed from time to time by the Board or these By-Laws.
-13-
<PAGE> 14
In the absence, disability or refusal of the Chairman of the
Board to act, or the vacancy of such office, the President shall preside at all
meetings of the stockholders and of the Board of Directors. Except as the Board
of Directors shall otherwise authorize, the President shall execute bonds,
mortgages and other contracts on behalf of the Corporation, and shall cause the
seal to be affixed to any instrument requiring it and, when so affixed, the seal
shall be attested by the signature of the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE PRESIDENTS. Each Vice President, if any are
elected, of whom one or more may be designated an Executive Vice President,
shall have such powers and shall perform such duties as shall be assigned to him
by the President or the Board of Directors.
SECTION 6. TREASURER. The Treasurer shall have custody of the
corporate funds, securities, evidences of indebtedness and other valuables of
the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
-14-
<PAGE> 15
The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers therefor. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe.
The Treasurer shall have such further powers and perform such
other duties incident to the office of Treasurer as from time to time are
assigned to him by the Board.
SECTION 7. SECRETARY. The Secretary shall be the Chief
Administrative Officer of the Corporation and shall: (a) cause minutes of all
meetings of the stockholders and directors to be recorded and kept; (b) cause
all notices required by these By-Laws or otherwise to be given properly; (c) see
that the minute books, stock books, and other nonfinancial books, records and
papers of the Corporation are kept properly; and (d) cause all reports,
statements, returns, certificates and other documents to be prepared and filed
when and as required. The Secretary shall have such further powers and perform
such other duties as prescribed from time to time by the Board.
-15-
<PAGE> 16
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each
Assistant Treasurer and each Assistant Secretary, if any are elected, shall be
vested with all the powers and shall perform all the duties of the Treasurer and
Secretary, respectively, in the absence or disability of such officer, unless or
until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform
such duties as shall be assigned to them by the Board.
SECTION 9. CORPORATE FUNDS AND CHECKS. The funds of the
Corporation shall be kept in such depositories as shall from time to time be
prescribed by the Board of Directors. All checks or other orders for the payment
of money shall be signed by the President or the Treasurer or such other person
or agent as may from time to time be authorized and with such countersignature,
if any, as may be required by the Board of Directors.
SECTION 10. CONTRACTS AND OTHER DOCUMENTS. The President or
Treasurer, or such other officer or officers as may from time to time be
authorized by the Board of Directors, shall have power to sign and execute on
behalf of the Corporation deeds, conveyances and contracts, and any and all
other documents requiring execution by the Corporation.
-16-
<PAGE> 17
SECTION 11. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The
President or the Treasurer, or such other officer or agent as shall be
authorized by the Board of Directors, shall have the power and authority, on
behalf of the Corporation, to attend and to vote at any meeting of stockholders
of any corporation in which the Corporation holds stock and may exercise, on
behalf of the Corporation, any and all of the rights and powers incident to the
ownership of such stock at any such meeting, including the authority to execute
and deliver proxies and consents on behalf of the Corporation.
SECTION 12. DELEGATION OF DUTIES. In the absence, disability or
refusal of any officer to exercise and perform his duties, the Board of
Directors may delegate to another officer such powers or duties.
SECTION 13. RESIGNATION AND REMOVAL. Any officer of the
Corporation may be removed from office for or without cause at any time by the
Board of Directors. Any officer may resign at any time in the same manner
prescribed under Section 3 of Article III of these By-Laws.
SECTION 14. VACANCIES. The Board of Directors shall have power
to fill vacancies occurring in any office.
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<PAGE> 18
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. 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 Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, certifying the number and class of shares of stock in the
Corporation owned by him. Any or all of the signatures on the certificate may be
a facsimile. The Board of Directors shall have the power to appoint one or more
transfer agents and/or registrars for the transfer or registration of
certificates of stock of any class, and may require stock certificates to be
countersigned or registered by one or more of such transfer agents and/or
registrars.
SECTION 2. TRANSFER OF SHARES. Shares of stock of the
Corporation shall be transferable upon its books by the holders thereof, in
person or by their duly authorized attorneys or legal representatives, upon
surrender to the Corporation by delivery thereof to the person in charge of the
stock and transfer books and ledgers. Such certificates shall be cancelled and
new certificates shall thereupon be issued. A
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<PAGE> 19
record shall be made of each transfer. Whenever any transfer of shares 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, both the
transferor and transferee request the Corporation to do so. The Board shall have
power and authority to make such rules and regulations as it may deem necessary
or proper concerning the issue, transfer and registration of certificates for
shares of stock of the Corporation.
SECTION 3. LOST CERTIFICATES. A new certificate of stock may be
issued in the place of any certificate previously issued by the Corporation,
alleged to have been lost, stolen, destroyed or mutilated, and the Board of
Directors may, in their discretion, require the owner of such lost, stolen,
destroyed or mutilated certificate, or his legal representative, to give the
Corporation a bond, in such sum as the Board may direct, not exceeding double
the value of the stock, in order to indemnify the Corporation against any claims
that may be made against it in connection therewith.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder thereof, in fact, and shall not
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<PAGE> 20
be bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise expressly provided by law.
SECTION 5. STOCKHOLDERS RECORD DATE. 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, 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 a
record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting. 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.
SECTION 6. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may at any regular or
special meeting, out of funds legally available
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therefor, declare dividends upon the stock of the Corporation. Before the
declaration of any dividend, the Board of Directors may set apart, out of any
funds of the Corporation available for dividends, such sum or sums as from time
to time in their discretion may be deemed proper for working capital or as a
reserve fund to meet contingencies or for such other purposes as shall be deemed
conducive to the interests of the Corporation.
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever any written notice is required to be
given by law, the Certificate of Incorporation or these By-Laws, such notice, if
mailed, shall be deemed to be given when deposited in the United States mail,
postage prepaid, addressed to the person entitled to such notice at his address
as it appears on the books and records of the Corporation. Such notice may also
be sent by telegram.
SECTION 2. WAIVER OF NOTICE. Whenever notice is required to be
given by law, 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
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person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any meeting of the stockholders, directors, or members of a
committee of the Board need be specified in any written waiver of notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-Laws may be amended or repealed
or new By-Laws may be adopted by the affirmative vote of a majority of the Board
of Directors at any regular or special meeting of the Board. If any By-Law
regulating an impending election of directors is adopted, amended or repealed by
the Board, there shall be set forth in the notice of the next meeting of
shareholders for the election of directors the By-Law(s) so adopted, amended, or
repealed, together with a precise statement of the changes made. By-Laws adopted
by the Board of Directors may be amended or repealed by shareholders.
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<PAGE> 23
ARTICLE VIII
SECTION 1. SEAL. The seal of the Corporation shall be circular
in form and shall have the name of the Corporation on the circumference and the
jurisdiction and year of incorporation in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall
end on December 31 of each year, or such other twelve consecutive months as the
Board of Directors may designate.
SECTION 3. INDEMNIFICATION. The Corporation shall, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, indemnify members of the Board and may, if authorized by the Board,
indemnify its officers, employees and agents and any and all persons whom it
shall have power to indemnify against any and all expenses, liabilities or other
matters.
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<PAGE> 1
EXHIBIT 3.110
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "R K O RADIO REPRESENTATIVES, INC.", FILED IN THIS OFFICE ON
THE SIXTEENTH DAY OF SEPTEMBER, A.D. 1968, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386122
DATE: 11-04-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
R K O RADIO REPRESENTATIVES, 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
R K O RADIO REPRESENTATIVES, INC.
SECOND: The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 229 South
State Street, City of Dover, County of Kent; and the name of the registered
agent of the corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and of the purposes to be conducted
and promoted by the corporation, which shall be in addition to the authority of
the corporation to conduct any lawful business, to promote any lawful purpose,
and to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware, is as
follows:
To purchase, acquire, sell, negotiate, promote, book,
arrange for, as principal, agent, representative, broker or
otherwise, television and radio air time, whether for artistic or
commercial purposes.
To obtain, engage, employ, supervise, advertise, publish,
furnish, provide, book, license the use of, negotiate, enter
into, execute and acquire, hold, assign and transfer contracts,
options
<PAGE> 3
and rights for and in respect of, and otherwise generally promote, direct
and deal in and with, as principal and agent, the services, talents,
performances, renditions, works, compositions, recordings, transcriptions,
broadcasts, telecasts and other professional output of any and all kinds of
singers, musicians, orchestras, actors, actresses, dancers, performers,
entertainers, composers, lyricists, arrangers, dramatists, playwrights,
artists, scenarist, authors, coaches, commentators, directors, producers,
managers, technicians and other personnel necessary or useful in all branches
of opera, music, drama, ballet, the theatre, motion pictures, radio, television
and other fields of entertainment.
To manage or administer as agent and/or expediter the whole or any part
of the business or property of any corporation, firm or person carrying on any
authorized business, and to sell or dispose of, receive and make disbursements
for, or arrange for the management or administration of, by any agent, the
whole or any part of the corporation's business or property.
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of its property and assets, or any
interest therein, wherever situated.
To engage generally in the real estate business as principal, agent,
broker, and in any lawful capacity, and generally to take, lease, purchase, or
otherwise acquire, and to own, use, hold, sell, convey, exchange, lease,
mortgage, work, clear, improve, develop, divide, and otherwise handle, manage,
operate, deal in and dispose of real estate, real property, lands,
multiple-dwelling structures, houses, buildings and other works and any
interest or right therein; to take, lease, purchase or otherwise acquire,
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<PAGE> 4
and to own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage,
and otherwise handle, and deal in and dispose of, as principal, agent, broker,
and in any lawful capacity, such personal property, chattels, chattels real,
rights, easements, privileges, choses in action, notes, bonds, mortgages, and
securities as may lawfully be acquired, held, or disposed of; and to acquire,
purchase, sell, assign, transfer, dispose of, and generally deal in and with, as
principal, agent, broker, and in any lawful capacity, mortgages and other
interests in real, personal, and mixed properties; to carry on a general
construction, contracting, building, and realty management business as
principal, agent, representative, contractor, subcontractor, and in any other
lawful capacity.
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, and 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 apply for, register, obtain, purchase, lease, take licenses in
respect of or otherwise acquire, and to hold, own, use, operate, develop,
enjoy, turn to account, grant licenses and immunities in respect of, manufacture
under and to introduce, sell, assign, mortgage, pledge or otherwise dispose of,
and, in any manner deal with and contract with reference to:
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<PAGE> 5
(a) inventions, devices, formulae, processes and any improvements
and modifications thereof;
(b) letters patent, patent rights, patented processes,
copyrights, designs, and similar rights, trade-marks, trade names,
trade symbols and other indications of origin and ownership granted by
or recognized under the laws of the United States of America, the
District of Columbia, any state or subdivision thereof, and any
commonwealth, territory, possession, dependency, colony, possession,
agency or instrumentality of the United States of America and of any
foreign country, and all rights connected therewith or appertaining
thereunto;
(c) franchises, licenses, grants and concessions.
To guarantee, purchase, take, receive, subscribe for, and otherwise
acquire, own, hold, use, and otherwise employ, sell, lease, exchange, transfer,
and otherwise dispose of, mortgage, lend, pledge, and otherwise deal in and
with, securities (which term, for the purpose of this Article THIRD, includes,
without limitation of the generality thereof, any shares of stock, bonds,
debentures, notes, mortgages, other obligations, and any certificates, receipts
or other instruments representing rights to receive, purchase or subscribe for
the same, or representing any other rights or interests therein or in any
property or assets) of any persons, domestic and foreign firms, associations,
and corporations, and by any government or agency or instrumentality thereof; to
make payment therefor in any lawful manner; and, while owner of any such
securities, to exercise any and all rights, powers and privileges in respect
thereof, including the right to vote.
To make, enter into, perform and carry out contracts of every kind
and description with any person, firm, association, corporation or government or
agency or instrumentality thereof.
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<PAGE> 6
To acquire by purchase, exchange or otherwise, all, or any part of, or any
interest in, the properties, assets, business and good will of any one or more
persons, firms, associations or corporations heretofore or hereafter engaged in
any business for which a corporation may now or hereafter be organized under the
laws of the State of Delaware; to pay for the same in cash, property or its own
or other securities; to hold, operate, reorganize, liquidate, sell or in any
manner dispose of the whole or any part thereof; and in connection therewith, to
assume or guarantee performance of any liabilities, obligations or contracts of
such persons, firms, associations or corporations, and to conduct the whole or
any part of any business thus acquired.
To lend money in furtherance of its corporate purposes and to invest and
reinvest its funds from time to time to such extent, to such persons, firms,
associations, corporations, governments or agencies or instrumentalities
thereof, and on such terms and on such security, if any, as the Board of
Directors of the corporation may determine.
To make contracts of guaranty and suretyship of all kinds and endorse or
guarantee the payment of principal, interest or dividends upon, and to guarantee
the performance of sinking fund or other obligations of, any securities, and
to guarantee in any way permitted by law the performance of any of the
contracts or other undertakings in which the corporation may otherwise be or
become interested, of any persons, firm, association, corporation, government
or agency or instrumentality thereof, or of any other combination, organization
or entity whatsoever.
To borrow money without limit as to amount and at such rates of interest as
it may determine; from time to time to issue and sell its own securities,
including its shares of stock, notes, bonds, debentures, and other obligations,
in such amounts, on such terms and conditions, for such purposes and for such
prices, now or hereafter permitted by the laws of the State of Delaware and by
this certificate
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<PAGE> 7
of incorporation, as the Board of Directors of the corporation may determine;
and to secure any of its obligations by mortgage, pledge or other encumbrance
of all or any of its property, franchises and income.
To be a promoter or manager of other corporations of any type or kind; and
to participate with others in any corporation, partnership, limited partnership,
joint venture, or other association of any kind, or in any transaction,
undertaking or arrangement which the corporation would have power to conduct by
itself, whether or not such participation involves sharing or delegation of
control with or to others.
To draw, make, accept, endorse, discount, execute, and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments and evidences of indebtedness whether
secured by mortgage or otherwise, as well as to secure the same by mortgage or
otherwise, so far as may be permitted by the laws of the State of Delaware.
To purchase, receive, take, reacquire or otherwise acquire, own and hold,
sell, lend, exchange, reissue, transfer or otherwise dispose of, pledge, use,
cancel, and otherwise deal in and with its own shares and its other securities
from time to time to such an extent and in such manner and upon such terms as
the Board of Directors of the corporation shall determine; provided that the
corporation shall not use its funds or property for the purchase of its own
shares of capital stock when its capital is impaired or when such use would
cause any impairment of its capital, except to the extent permitted by law.
To organize, as an incorporator, or cause to be organized under the laws of
the State of Delaware, or of any other State of the United States of America, or
of the District of Columbia, or of any commonwealth, territory, dependency,
colony, possession, agency, or instrumentality of the United States of America,
or of any foreign country, a corporation or corporations for the purpose
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<PAGE> 8
of conducting and promoting any business or purpose for which corporations may
be organized, and to dissolve, wind up, liquidate, merge or consolidate any such
corporation or corporations or to cause the same to be dissolved, wound up,
liquidated, merged or consolidated.
To conduct its business, promote its purposes, and carry on its
operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all States of the United States of
America, in the District of Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions, agencies, or instrumentalities
of the United States of America and of foreign governments.
To promote and exercise all or any part of the foregoing purposes and
powers in any and all parts of the world, and to conduct its business in all or
any of its branches as principal, agent, broker, factor, contractor, and in any
other lawful capacity either alone or through or in conjunction with any
corporations, associations, partnerships, firms, trustees, syndicates,
individuals, organizations, and other entities in any part of the world, and, in
conducting its business and promoting any of its purposes, to maintain offices,
branches and agencies in any part of the world, to make and perform any
contracts and to do any acts and things, and to carry on any business, and to
exercise any powers and privileges suitable, convenient, or proper for the
conduct, promotion, and attainment of any of the business and purposes herein
specified or which at any time may be incidental thereto or may appear conducive
to or expedient for the accomplishment of any of such business and purposes and
which might be engaged in or carried on by a corporation incorporated or
organized under the General Corporation Law of the State of Delaware, and to
have and exercise all of the powers conferred by the laws of the State of
Delaware upon corporations incorporated or organized under the General
Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent
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<PAGE> 9
purpose and power. The forgoing enumeration of specific purposes and powers
shall not be held to limit or restrict in any manner the purposes and powers of
the corporation, and the purposes and powers herein specified shall, except
when otherwise provided in this Article THIRD, 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 this certificate of incorporation; provided, that
the corporation shall not conduct any business, promote any purpose, or
exercise any power or privilege within or without the State of Delaware which,
under the laws thereof, the corporation may not lawfully conduct, promote, or
exercise.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Hundred Thousand (100,000). The par value of
each of such shares is One Dollar ($1.00). All such shares are of one class
and are shares of Common Stock.
No holder of any of the shares of the stock of the corporation, whether
now or hereafter authorized and issued, shall be entitled as of right to
purchase or subscribe for (1) any unissued stock of any class, or (2) any
additional shares of any class to be issued by reason of any increase of the
authorized capital stock of the corporation of any class, or (3) bonds,
certificates of indebtedness, debentures or other securities convertible into
stock of the corporation, or carrying any right to purchase stock of any class,
but any such unissued stock or such additional authorized issue of any stock or
of other securities convertible into stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations and upon such
terms as may be deemed advisable by the Board of Directors in the exercise of
its discretion.
FIFTH: The name and the mailing address of the incorporator are as
follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
R.G. Dickerson 229 South State Street
Dover, Delaware
</TABLE>
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 stock-
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<PAGE> 10
holders 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 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 this 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 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, 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. The number of directors which shall constitute the whole Board
of Directors shall be fixed by, or in the manner provided in, the By-Laws.
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. The original By-Laws of the corporation shall be adopted by the
incorporator unless the certificate of incorporation shall name the initial
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<PAGE> 11
Board of Directors therein. Thereafter, the power to make, alter, or repeal the
By-Laws, and to adopt any new By-Law, except a By-Law classifying directors for
election for staggered terms, shall be vested in the Board of Directors.
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 notice of, and
the right to vote, at any meeting of stockholders except as the provisions of
paragraph (d)(2) of section 242 of the General Corporation Law and of sections
251, 252, and 253 of the General Corporation Law 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.
4. In lieu of taking any permissive or requisite action by vote at a
meeting of stockholders, any such vote and any such meeting may be dispensed
with if either all of the stockholders entitled to vote upon the action at any
such meeting shall consent in writing to any such corporate action being taken
or if less than all of the stockholders entitled to vote upon the action at
any such meeting shall consent in writing to any such corporate action being
taken; provided, that any such action taken upon less than the unanimous
written consent of all stockholders entitled to vote upon any such action shall
be by the written consent of the stockholders holding at least the minimum
percentage of the votes required to be cast to authorize any such action under
the provisions of the General Corporation Law or under the provisions of the
certificate of incorporation or the By-Laws as permitted by the provisions of
the General Corporation
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<PAGE> 12
Law; and, provided, that prompt notice be given to all
stockholders entitled to vote on any such action of the taking
of such action without a meeting and by less than unanimous
written consent.
NINTH: No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, who have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or Committee in good faith authorizes the
contract or transaction by a vote sufficient for such purpose without
counting the vote of the interested director or directors; or
(2) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
(4) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
TENTH: (a) The corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a
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<PAGE> 13
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed 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 a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that 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 duty to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred
-12-
<PAGE> 14
to in paragraphs (a) and (b), or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in paragraphs (a) and (b). Such determination shall be
made (1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, 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.
(g) The corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation
-13-
<PAGE> 15
would have the power to indemnify him against such liability under the
provisions of this Article.
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.
Executed at Dover, Delaware, on September 16, 1968.
/s/ R. G. DICKERSON
----------------------------------
R. G. Dickerson
Incorporator
STATE OF DELAWARE )
) SS.:
COUNTY OF KENT )
BE IT REMEMBERED that, on September 16, 1968, before me, a Notary Public
duly authorized by law to take acknowledgment of deeds, personally came R. G.
Dickerson, the incorporator who duly executed the foregoing certificate of
incorporation before me and acknowledged the same to be his act and deed, and
that the facts therein stated are true.
GIVEN under my hand on September 16, 1968.
/s/ NANCY S. TRUAX
----------------------------------
Nancy S. Truax
Notary Public
-14-
<PAGE> 16
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "R K O RADIO REPRESENTATIVES, INC.", CHANGING ITS NAME FROM "R K O RADIO
REPRESENTATIVES, INC." TO "RKO RADIO SALES, INC.", FILED IN THIS OFFICE ON THE
FIFTEENTH DAY OF SEPTEMBER, A.D. 1977, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386123
DATE: 11-04-98
<PAGE> 17
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
R K O RADIO REPRESENTATIVES, INC.
It is hereby certified that:
1. The name of the corporation is RKO Radio Representatives,
Inc.
2. The Certificate of Incorporation of the corporation is
hereby amended by striking out Article First thereof and by substituting in lieu
thereof the following Article:
"FIRST: The name of the corporation (hereinafter called the
"corporation") is
RKO RADIO SALES, INC."
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
228 and 242 of the General Corporation Law of the State of Delaware.
4. The effective date of the amendment herein certified shall
be October 1, 1977.
Signed and attested to on September 12, 1977.
[ILLEGIBLE]
-------------------
VICE PRESIDENT
ATTEST:
[ILLEGIBLE]
- --------------------
ASSISTANT SECRETARY
<PAGE> 18
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
BE IT REMEMBERED THAT on September 12, 1977, before me, a Notary Public
duly authorized by law to take acknowledgement of deeds, personally came THOMAS
T. BURCHILL, the Vice President of RKO RADIO REPRESENTATIVES, INC., who duly
signed the foregoing instrument before me and acknowledged that such signing is
his act and deed, that such instrument as executed is the act of said
corporation, and the facts stated therein are true to the best of his
knowledge and belief.
GIVEN under my hand on September 12, 1977.
/s/ OLIVER J. JANNEY
--------------------
NOTARY PUBLIC
<PAGE> 19
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "RKO RADIO SALES, INC.", CHANGING ITS NAME FROM "RKO RADIO SALES, INC." TO
"REPUBLIC RADIO SALES, INC.", FILED IN THIS OFFICE ON THE THIRD DAY OF APRIL,
A.D. 1984, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386124
DATE: 11-04-98
<PAGE> 20
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
RKO RADIO SALES, INC.
----------------------------
Adopted in Accordance
with the
Provisions of Section 242
of the
General Corporation Law
of the
State of Delaware
----------------------------
RKO RADIO SALES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify that an amendment to the Certificate of
Incorporation of the Corporation changing Articles FIRST AND FOURTH thereof to
read, respectively, as follows has been duly adopted in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware:
"FIRST: The name of the corporation (hereinafter sometimes
referred to as the "Corporation") is REPUBLIC RADIO SALES, INC."
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand (1,000)
shares, par value $1.00 per share. All such shares are of one class
and are shares of Common Stock."
<PAGE> 21
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed on its behalf by Kenneth J. Swetz, its President, and attested by
Richard D. Mendelson, its Secretary, this 2nd day of April, 1984.
RKO RADIO SALES, INC.
By: /s/ KENNETH J. SWETZ
-----------------------------------
Kenneth J. Swetz
President
Attest:
By: /s/ RICHARD D. MENDELSON
-----------------------------------
Richard D. Mendelson
Secretary
-2-
<PAGE> 22
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "REPUBLIC RADIO SALES, INC.", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF APRIL, A.D. 1984, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386125
DATE: 11-04-98
<PAGE> 23
CERTIFICATE OF CHANGE OF LOCATION OF
REGISTERED OFFICE AND OF AGENT
OF
REPUBLIC RADIO SALES, INC.
-------------------------------------------
Adopted in accordance with the Provisions
of Section 133 of the General Corporation
Law of the State of Delaware.
-------------------------------------------
It is hereby certified that:
I. The name of the corporation is
REPUBLIC RADIO SALES, INC.
II. The registered office of the corporation within the state of
Delaware is hereby changed to 300 South State Street, in the City of Dover,
County of Kent, 19901.
III. The Registered Agent of the corporation within the state of
Delaware is hereby changed to United States Corporation Company, the business
office of which is identical with the registered office as hereby changed.
IV. The corporation has authorized the changes hereinabove set
forth by resolution of its Board of Directors.
IN WITNESS WHEREOF, we have signed this certificate this 13th
day of April, 1984.
/s/ [ILLEGIBLE]
----------------------------------
President
ATTEST:
/s/ [ILLEGIBLE]
- ------------------------------------
(Assistant) Secretary
<PAGE> 24
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"CHRISTAL RADIO SALES, INC.", A DELAWARE CORPORATION, WITH AND INTO
"REPUBLIC RADIO SALES, INC." UNDER THE NAME OF "CHRISTAL RADIO SALES, INC.", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE SIXTH DAY OF SEPTEMBER, A.D. 1990, AT
11:30 O'CLOCK A.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386126
DATE: 11-04-98
<PAGE> 25
CERTIFICATE OF MERGER
of
CHRISTAL RADIO SALES, INC.
with and into
REPUBLIC RADIO SALES, INC.
pursuant to
Section 251 of the General Corporation
Law of the State of Delaware
The undersigned hereby certify that:
FIRST: The name and state of incorporation of each of the constituent
corporations of the merger are as follows:
<TABLE>
<CAPTION>
Name State of Incorporation
---- ----------------------
<S> <C>
Christal Radio Sales, Inc. Delaware
Republic Radio Sales, Inc. Delaware
</TABLE>
SECOND: An Agreement and Plan of Merger between the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware. The executed Agreement
and Plan of Merger is on file at the office of Republic Radio Sales, Inc.
located at One Dag Hammarskjold Plaza, New York, New York; executed and
acknowledged by each of the constituent corporations, a copy of which will be
furnished to any stockholder of any constituent corporation without cost and
upon request.
THIRD: Republic Radio Sales, Inc. shall be the corporation surviving the
merger and shall change its name to "Christal Radio Sales, Inc.".
<PAGE> 26
FOURTH: The certificate of incorporation of Republic Radio Sales, Inc. in
effect immediately prior to the merger shall continue in effect for the
surviving corporation.
Date: September 5, 1990
ATTEST REPUBLIC RADIO SALES, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------------
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
Title: Vice President
ATTEST CHRISTAL RADIO SALES, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------------
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
Title: Vice President
<PAGE> 1
EXHIBIT 3.111
AMENDED AND RESTATED BYLAWS
OF
CHRISTAL RADIO SALES, INC.
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE ONE: OFFICES
<S> <C> <C> <C>
1.1 Registered Office and Agent................................................................... 1
1.2 Other Offices................................................................................. 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting................................................................................ 1
2.2 Special Meeting............................................................................... 1
2.3 Place of Meetings............................................................................. 2
2.4 Notice........................................................................................ 2
2.5 Voting List................................................................................... 2
2.6 Quorum........................................................................................ 3
2.7 Required Vote; Withdrawal of Quorum........................................................... 3
2.8 Method of Voting; Proxies..................................................................... 3
2.9 Record Date................................................................................... 3
2.10 Conduct of Meeting............................................................................ 4
2.11 Inspectors.................................................................................... 5
ARTICLE THREE: DIRECTORS
3.1 Management.................................................................................... 5
3.2 Number; Qualification; Election; Term......................................................... 5
3.3 Change in Number.............................................................................. 6
3.4 Removal....................................................................................... 6
3.5 Vacancies..................................................................................... 6
3.6 Meetings of Directors......................................................................... 7
3.7 First Meeting................................................................................. 7
3.8 Election of Officers.......................................................................... 7
3.9 Regular Meetings.............................................................................. 7
3.10 Special Meetings.............................................................................. 7
3.11 Notice........................................................................................ 7
3.12 Quorum; Majority Vote......................................................................... 7
3.13 Procedure..................................................................................... 8
3.14 Presumption of Assent......................................................................... 8
3.15 Compensation.................................................................................. 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE FOUR: COMMITTEES
<S> <C> <C> <C>
4.1 Designation................................................................................... 8
4.2 Number; Qualification; Term................................................................... 8
4.3 Authority..................................................................................... 8
4.4 Committee Changes............................................................................. 9
4.5 Alternate Members of Committees............................................................... 9
4.6 Regular Meetings.............................................................................. 9
4.7 Special Meetings.............................................................................. 9
4.8 Quorum; Majority Vote......................................................................... 9
4.9 Minutes....................................................................................... 9
4.10 Compensation.................................................................................. 9
4.11 Responsibility................................................................................ 10
ARTICLE FIVE: NOTICE
5.1 Method........................................................................................ 10
5.2 Waiver........................................................................................ 10
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office................................................................ 10
6.2 Removal....................................................................................... 11
6.3 Vacancies..................................................................................... 11
6.4 Authority..................................................................................... 11
6.5 Compensation.................................................................................. 11
6.6 Chairman of the Board......................................................................... 11
6.7 President..................................................................................... 11
6.8 Vice Presidents............................................................................... 11
6.9 Treasurer..................................................................................... 12
6.10 Assistant Treasurers.......................................................................... 12
6.11 Secretary..................................................................................... 12
6.12 Assistant Secretaries......................................................................... 12
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares....................................................................... 12
7.2 Replacement of Lost, Stolen, or Destroyed Certificates........................................ 13
7.3 Transfer of Shares............................................................................ 13
7.4 Registered Stockholders....................................................................... 13
7.5 Regulations................................................................................... 13
7.6 Legends....................................................................................... 13
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
<S> <C> <C> <C>
8.1 Dividends..................................................................................... 14
8.2 Reserves...................................................................................... 14
8.3 Books and Records............................................................................. 14
8.4 Fiscal Year................................................................................... 14
8.5 Seal.......................................................................................... 14
8.6 Resignations.................................................................................. 14
8.7 Securities of Other Corporations.............................................................. 14
8.8 Telephone Meetings............................................................................ 14
8.9 Action Without a Meeting...................................................................... 15
8.10 Invalid Provisions............................................................................ 15
8.11 Mortgages, etc................................................................................ 16
8.12 Headings...................................................................................... 16
8.13 References.................................................................................... 16
8.14 Amendments.................................................................................... 16
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
CHRISTAL RADIO SALES, INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "DGCL") and the certificate of incorporation
of Christal Radio Sales, Inc., a Delaware corporation (the "Corporation"). In
the event of a direct conflict between the provisions of these bylaws and the
mandatory provisions of the DGCL or the provisions of the certificate of
incorporation of the Corporation, such provisions of the DGCL or the
certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State
of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President or the board of
directors. Further, a special meeting of the stockholders shall be called by
the President or the Secretary at the request in writing of the stockholders of
record of not less than ten percent of all shares entitled to vote at such
meeting or as otherwise provided by the certificate of incorporation of the
Corporation.
1
<PAGE> 6
A special meeting shall be held on such date and at such time as shall be
designated by the person(s) calling the meeting and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held
at any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 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 officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, notice
is given when deposited in the United States mail, postage prepaid, directed to
such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any meeting
of stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare and make a complete list of stockholders entitled to
vote thereat, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. For a period of at least ten days prior to such meeting, such list
shall be kept on file at a place within the city where the meeting is to be
held, which place shall be specified in the notice of meeting or a duly
executed waiver of notice of such meeting or, if not so specified, at the place
where the meeting is to be held and shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours. Such list shall also be produced at such meeting and kept at the meeting
at all times during such meeting and may be inspected by any stockholder who is
present.
2
<PAGE> 7
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders,
the stockholders entitled to vote thereat who are present, in person or by
proxy, or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other
than announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide
any question brought before such meeting, unless the question is one on which,
by express provision of statute, the certificate of incorporation of the
Corporation or any amendment(s) thereto, or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by another person or persons duly authorized
under ss. 212 of the DGCL to act for him as proxy. Each 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 three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, 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
3
<PAGE> 8
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 by the board of directors, and which record
date shall not be more than 60 days and not less than ten days prior to such
meeting. If no record date is fixed:
(i) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law or these bylaws, 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
in the State of Delaware, principal place of business, or such officer or agent
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 law or these bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the
absence or inability to act of any such officer, such officer's
4
<PAGE> 9
duties shall be performed by the officer given the authority to act for such
absent or non-acting officer under these bylaws or by some person appointed by
the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting and make
a written report thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and ballots 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 results, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by them, certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. The inspector(s) shall
perform his duties in accordance with ss. 231 of the DGCL. On request of the
chairman of the meeting, the inspectors shall make a report in writing of any
challenge, request, or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors
which shall constitute the entire board of directors shall be not less than
one. The first board of directors shall consist of the number of directors
named in the certificate of incorporation of the Corporation. In which case a
change in the number of directors shall be made only by amendment of the
certificate. If no directors are named in the certificate of incorporation, the
first board of directors shall consist of the number of directors elected by
the incorporator(s) at an organizational meeting or by unanimous written
consent in lieu thereof. Thereafter, within the limits above specified, the
number of directors which shall constitute the entire board of directors shall
be determined by resolution of the board of directors or by resolution of the
stockholders at the annual meeting thereof or at a special meeting thereof
called for that purpose. Except as otherwise required by law, the certificate
of incorporation of the
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Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each
director so chosen shall hold office until the first annual meeting of
stockholders held after his election and until his successor is elected and
qualified or, if earlier, until his death, resignation, or removal from office.
None of the directors need be a stockholder of the Corporation or a resident of
the State of Delaware. Each director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of
stockholders called expressly for that purpose, any director 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 then entitled to vote on the election of
directors; provided, however, that so long as stockholders have the right to
cumulate votes in the election of directors pursuant to the certificate of
incorporation of the Corporation, if less than the entire board of directors is
to be removed, no one of the directors 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.
3.5 Vacancies. Vacancies and newly-created directorships resulting
from any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by
the sole remaining director, and each director so chosen shall hold office
until the first annual meeting of stockholders held after his election and
until his successor is elected and qualified or, if earlier, until his death,
resignation, or removal from office. If there are no directors in office, an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly-created directorship, the directors
then in office shall constitute less than a majority of the whole board of
directors (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least 10% of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly-created directorships, or to replace the
directors chosen by the directors then in office. Except as otherwise provided
in these bylaws, 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 the 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 in these bylaws with respect to the filling of other
vacancies.
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3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.11 Notice. The Secretary shall give notice of each special meeting
to each director at least 24 hours before the meeting. Notice of any such
meeting need not be given to any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to
time without further notice. Unless the act of a greater number is required by
law, the certificate of incorporation of the Corporation, or these bylaws, the
act of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
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3.13 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of
the Corporation shall act as the secretary of each meeting of the board of
directors unless the board of directors appoints another person to act as
secretary of the meeting. The board of directors shall keep regular minutes of
its proceedings which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at the 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
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.15 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by
a majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one
or more directors appointed by resolution adopted by a majority of the entire
board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the
earliest of (i) the expiration of his term as director, (ii) his resignation as
a committee member or as a director, or (iii) his removal as a committee member
or as a director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the board of directors in the management of the
business and affairs of the Corporation except to
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the extent expressly restricted by law, the certificate of incorporation of the
Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge
any committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting
of the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified,
the member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting of any committee need
be specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting
from time to time, without notice other than an announcement at the meeting,
until a quorum is present. The act of a majority of the members present at any
meeting at which a quorum is in attendance shall be the act of a committee,
unless the act of a greater number is required by law, the certificate of
incorporation of the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the
request of the board of directors. The minutes of the proceedings of each
committee shall be delivered to the Secretary of the Corporation for placement
in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board
of directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
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4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice
required or permitted to be given by telegram, telex, or telefax shall be
deemed to be delivered and given at the time transmitted with all charges
prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner hereinafter provided. Any two
or more offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
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6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the
compensation of any officer and agent (other than the officer to whom such
power is delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by
the board of directors, shall have such powers and duties as may be prescribed
by the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the
Board or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, 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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6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as
may be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence
of such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer
during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which
shall at all reasonable times be open to inspection by any director upon
application at the office of the Corporation during business hours. He shall in
general perform all duties incident to the office of the Secretary, subject to
the control of the board of directors, the Chairman of the Board, and the
President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or
registrar who has signed, or whose facsimile signature has been placed upon, a
certificate has ceased to be such officer,
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transfer agent, or registrar before such certificate is issued, such
certificate 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. The
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.
7.2 Replacement of Lost, Stolen, or Destroyed Certificates. The board
of directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates 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 or certificates
representing shares to be lost, stolen, 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, stolen, 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 with a surety or sureties satisfactory to
the Corporation in such sum as it may direct as indemnity against any claim, or
expense resulting from a claim, that may be made against the Corporation with
respect to the certificate or certificates alleged to have been lost, stolen,
or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 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.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does
not become liable for violations of federal or state securities laws or other
applicable law.
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ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and
payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain any
property of the Corporation, or for such other purpose as the board of
directors shall consider beneficial to the Corporation, and the board of
directors may modify or abolish any such reserve in the manner in which it was
created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the board of directors, and members of a committee of the
board of directors may
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participate in and hold a meeting of such stockholders, board of directors, or
committee by means of a conference telephone or similar communications
equipment by means of which persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this section shall constitute
presence in person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
DGCL to be taken at any annual or special meeting of the stockholders, 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 (acting for themselves or through a proxy) 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 the holders of all
shares entitled to vote thereon were present and voted and shall be 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. Every written consent of stockholders 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 days of the earliest dated consent delivered in the manner
required by this Section 8.9(a) to the Corporation, written consents signed by
a sufficient number of holders to take action are 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, principal place of
business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
(b) Unless otherwise restricted by the certificate of incorporation of
the Corporation or by these bylaws, any action required or permitted to be
taken at a meeting of the board of directors, or of any committee of the board
of directors, may be taken without a meeting if a consent or consents in
writing, setting forth the action so taken, shall be signed by all the
directors or all the committee members, as the case may be, entitled to vote
with respect to the subject matter thereof, and such consent shall have the
same force and effect as a vote of such directors or committee members, as the
case may be, and may be stated as such in any certificate or document filed
with the Secretary of State of the State of Delaware or in any certificate
delivered to any person. Such consent or consents shall be filed with the
minutes of proceedings of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
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8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these bylaws have been inserted
for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or
new bylaws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
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EXHIBIT 3.112
[STATE OF DELAWARE OFFICE OF SECRETARY OF STATE LETTERHEAD]
PAGE 1
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF E.R. ACQUISITION, INC. FILED IN THIS OFFICE ON THE SIXTEENTH
DAY OF JULY, A.D. 1990, AT 1 O'CLOCK P.M.
/ / / / / /
RECEIVED FOR RECORD
Jul. 18 A.D. 1990
/s/ illegible signature
RECORDER
$3.00 STATE DOCUMENT FEE PAID
[SEAL OF DEPT. OF STATE,
OFFICE OF THE SECRETARY
OF STATE, DELAWARE]
750197007 /s/ Michael Harkins
Michael Harkins, Secretary of State
AUTHENTICATION: 2727468
DATE: 07/16/1990
<PAGE> 2
CORPORATE FACT SHEET
As of January 14, 1991
CLIENT/MATTER 00608.117
NAME: Eastman Radio Sales, Inc. (formerly E.R. Acquisition, Inc.)
STATE & DATE OF INCORPORATION: Delaware - July 16, 1990
STATE(S) & DATE(S) OF QUALIFICATION: California, 11/28/90, Georgia, 11/28/90,
New York, 11/28/90, Michigan, 11/30/90, Texas, 11/28/90, Washington, 11/28/90,
Illinois - pending
REGISTERED AGENT & ADDRESS: The Prentice-Hall Corporation System, Inc., 32
Loockerman Square, Suite L-100, Dover, Delaware 19901
FISCAL YEAR: 12/31
AUTHORIZED NUMBER OF SHARES: 1000
SHARES ISSUED: 100
PAR VALUE: $1.00
CLASS: Common
CORPORATE MINUTE BOOK KEPT BY: BATTLE FOWLER X CLIENT
--- ---
<TABLE>
<CAPTION>
NUMBER
DIRECTORS OFFICERS SHAREHOLDERS OF SHARES
- --------- -------- ------------ ---------
<S> <C> <C> <C>
Peter R. Goulazian Kenneth J. Swetz -- Katz 100
James L. Greenwald Chairman and Chief Communications, (Pledged
Arnold Sheiffer Executive Officer Inc. to Citi-
Kenneth Swetz James L. Greenwald -- bank)
Senior Vice President
and Assistant Secretary
Peter R. Goulazian --
Senior Vice President
Arnold Sheiffer --
Senior Vice President,
Secretary and Treasurer
</TABLE>
<PAGE> 3
CERTIFICATE OF INCORPORATION
OF
E.R. ACQUISITION, INC.
THE UNDERSIGNED, in order to form a corporation for the purposes
herein stated, under and pursuant to the provisions of the General Corporation
Law of the State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation is E.R. Acquisition, Inc.
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation is to be located at
32 Loockerman Square, Suite L-100, Dover, County of Kent, Delaware 19901. The
name of its registered agent at that address is The Prentice-Hall Corporation
System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity, without limitation, for which a corporation may be organized under
the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation is authorized to issue is One Thousand (1,000) shares, consisting
entirely of Common Stock, all of which are of the par value of $1.00 per share.
FIFTH: The name and mailing address of the sole incorporator is:
NAME ADDRESS
---- -------
Karen A. Foley Battle Fowler
280 Park Avenue
New York, New York 10017
SIXTH: The election of directors need not be by written ballot
unless the By-laws so provide.
SEVENTH: The Board of Directors of the Corporation is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
the By-laws of the Corporation, except as such power may be restricted or
limited by the General Corporation Law of the State of Delaware.
EIGHTH: 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
<PAGE> 4
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 or class value of the creditors or 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
creditors or class of creditors, and/or all the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
NINTH: 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.
TENTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
ELEVENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons who 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 By-laws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in any
other capacity while holding such office, and shall continue as to a person who
has ceased to be a director, officer, employee or
-2-
<PAGE> 5
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of July,
1990.
/s/ Karen A. Foley
----------------------
Karen A. Foley, Sole Incorporator
Battle Fowler
180 Park Avenue
New York, New York 10017
-3-
<PAGE> 6
PAGE 1
STATE OF DELAWARE
[STATE EMBLEM]
OFFICE OF SECRETARY OF STATE
-------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF E.R. ACQUISITION, INC. FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF AUGUST,
A.D. 1990, AT 12:30 O'CLOCK P.M.
RECEIVED FOR RECORD
Aug. 17 A.D. 1990
------- --
/s/ MICHAEL T. SCUSE
RECORDER
[DEPARTMENT OF STATE
EMBLEM] $3.00 STATE DOCUMENT FEE PAID
750227056 /S/ MICHAEL HARKINS
--------------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 2762417
DATE: 08/15/1990
<PAGE> 7
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:30 P.M. 08/15/1990
750227056 - 2236027
750227056
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
E.R. ACQUISITION, INC.
-----------------------------
Adopted in Accordance
With Section 242
of the
General Corporation Law
of the
State of Delaware
-----------------------------
The undersigned, on behalf of E.R. Acquisition, Inc., a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify:
FIRST: That the name of the corporation is E.R. Acquisition, Inc. (the
"Corporation").
SECOND: That the Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on July 16, 1990.
THIRD: That the amendment set forth herein to the Certificate of
Incorporation of the Corporation was duly authorized by the Board of Directors
and Stockholders of the Corporation in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That in lieu of a vote of stockholders on this amendment, written
consent of the stockholders was given in accordance with the provisions of
Section 228(a) of the General Corporation Law of the State of Delaware.
FIFTH: That the amendment to the Certificate of Incorporation of the
Corporation effected by this Certificate of Amendment is to change the name of
the Corporation to: Eastman Radio Sales, Inc.
<PAGE> 8
SIXTH: That to accomplish the foregoing amendment, Article First of the
Certificate of Incorporation of the Corporation is hereby amended to read as
follows:
"FIRST: The name of the corporation is Eastman Radio Sales, Inc.
(hereinafter called the "Corporation")."
IN WITNESS WHEREOF, this Certificate has been signed this 15th day of
August, 1990, and the undersigned hereby affirms, under penalties of perjury,
that the statements made herein are true and correct.
E.R. Acquisition, Inc.
By: /s/ Kenneth J. Swetz
---------------------------------
Name: Kenneth J. Swetz
Title: President
Attest By: /s/ James L. Greenwald
---------------------------------
Name: James L. Greenwald
Title: Assistant Secretary
<PAGE> 9
State of Delaware
[LOGO SEAL OF DELAWARE]
OFFICE OF SECRETARY OF STATE
------------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF E.R. ACQUISITION, INC. FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF AUGUST,
A.D. 1990, AT 12:30 O'CLOCK P.M.
[DELAWARE DEPARTMENT OF STATE SEAL] /s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 2762416
750227056 DATE: 08/15/1990
<PAGE> 1
EXHIBIT 3.113
B Y - L A W S
OF
EASTMAN RADIO SALES, INC.
(f/k/a E.R. Acquisition, Inc.)
(a Delaware corporation)
----------------
ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its registered office in
the State of Delaware at 32 Loockerman Square, Suite L-100, Dover, 19901 and its
resident agent at such address is The Prentice-Hall Corporation Systems, Inc.
The Corporation may also have offices in such other places in the United States
or elsewhere as the Board of Directors may, from time to time, appoint or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may properly be conducted
at such meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors
<PAGE> 2
shall determine by resolution and set forth in the notice of the meeting. In the
event that the Board of Directors fails to so determine the time, date and place
for the annual meeting, it shall be held, beginning in 1991, at the principal
office of the Corporation at 10 o'clock A.M. on the last Friday in March of each
year.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the Chairman of the Board, the
President or by resolution of the Board of Directors and shall be called by the
President or Secretary upon the written request of not less than 10% in interest
of the stockholders entitled to vote thereat. Notice of each special meeting
shall be given in accordance with Section 3 of this Article II. Unless otherwise
permitted by law, business transacted at any special meeting of stockholders
shall be limited to the purpose stated in the notice.
SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting,
which shall state the place, date and time of the meeting, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be mailed
to or delivered to each stockholder of record entitled to vote thereat. Such
notice shall be given not less
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<PAGE> 3
than ten (10) days nor more than sixty (60) days before the date of any such
meeting.
SECTION 4. QUORUM. Unless otherwise required by law or the Certificate
of Incorporation, the holders of a majority of the issued and outstanding stock
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
stockholders.
SECTION 5. VOTING. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Upon the request of not less than 10%
in interest of the stockholders entitled to vote at a meeting, voting shall be
by written ballot. All elections of directors shall be decided by plurality
vote. Unless otherwise required by law, these By-Laws or the Certificate of
Incorporation, all other corporate action shall be decided by majority vote.
SECTION 6. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting may, or if inspectors shall not have
been appointed, the chairman of the meeting shall, appoint one or more
inspectors. Each inspector, before
-3-
<PAGE> 4
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares of capital stock of the Corporation outstanding
and the voting power of each, the number of shares 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 results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
SECTION 7. CHAIRMAN OF MEETINGS. The Chairman of the Board of Directors
of the Corporation, if one is elected, or, in his absence or disability, the
President of the Corporation, shall preside at all meetings of the stockholders.
SECTION 8. SECRETARY OF MEETING. The Secretary of the Corporation shall
act as Secretary at all meetings of the
-4-
<PAGE> 5
stockholders. In the absence or disability of the Secretary, the Chairman of
the Board of Directors or the President shall appoint a person to act as
Secretary at such meetings.
SECTION 9. LISTS OF STOCKHOLDERS. 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 entitled to vote at
the meeting, arranged in alphabetical order, showing the address of each
stockholder and the number and class of shares held by each. 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 where the meeting is to be
held, which 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 meeting and may be inspected by any stockholder who is
present.
SECTION 10. ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required by law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
such meetings, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the
-5-
<PAGE> 6
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 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.
SECTION 11. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or 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. Any business may be transacted
at the adjourned meeting which might have been transacted at the meeting
originally noticed. If the adjournment is for more than thirty days, or if
after the adjournment a new record date, as provided for in Section 5 of
Article V of these By-Laws, 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.
-6-
<PAGE> 7
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the Corporation
shall be managed and controlled by its Board of Directors. The Board shall
exercise all of the powers and duties conferred by law except as provided by
the Certificate of Incorporation or these By-Laws.
SECTION 2. NUMBER AND TERM. The number of directors shall be fixed at no
less than one nor more than ten. Within the limits specified above, the number
of directors shall be fixed from time to time by the Board. The Board of
Directors shall be elected by the stockholders at their annual meeting, and
each director shall be elected to serve for the term of one year and until his
successor shall be elected and qualify or until his earlier resignation or
removal. Directors need not be stockholders.
SECTION 3. RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 4. REMOVAL. Any director or the entire Board of Directors may be
removed either for or without cause
-7-
<PAGE> 8
at any time by the affirmative vote of the holders of a majority of the shares
entitled to vote for the election of directors at any annual or special
meeting of the stockholders called for that purpose. Vacancies thus created may
be filled at such meeting by the affirmative vote of a majority of the
stockholders entitled to vote, or, if the vacancies are not so filled, by the
directors as provided in Section 5 of this Article III.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except as provided
in Section 4 of this Article III, vacancies occurring in any directorship and
newly created directorships may be filled by a majority vote of the remaining
directors then in office. Any director so chosen shall hold office for the
unexpired term of his predecessor and until his successor shall be elected and
qualify or until his earlier death, resignation or removal. The Board may not
fill the vacancy created by removal of a director by electing the director so
removed.
SECTION 6. MEETINGS. The newly elected directors shall hold their first
meeting to organize the Corporation, elect officers and transact any other
business which may properly come before the meeting. An annual organizational
meeting of the Board of Directors shall be held immediately after each annual
meeting of the stockholders, or at such time and place as may be noticed for
the meeting.
-8-
<PAGE> 9
Regular meetings of the Board may be held without notice at such places
and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board shall be called by the President or by the
Secretary on the written request of any director with at least two days' notice
to each director and shall be held at such place as may be determined by the
directors or as shall be stated in the notice of the meeting.
SECTION 7. QUORUM, VOTING AND ADJOURNMENT. A majority of the total number
of directors or any committee thereof shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum, a majority of the directors present thereat may adjourn
such meeting to another time and place. Notice of such adjourned meeting need
not be given if the time and place of such adjourned meeting are announced at
the meeting so adjourned.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the Board, designate one or more committees, including but not
limited to an Executive Committee and an Audit Committee, each such committee
to consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members
- 9 -
<PAGE> 10
of any committee to replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution of
the Board, 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 to all papers which
may require it; but no such committee shall have the power or authority to amend
the Certificate of Incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's properties and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution
or to amend these By-Laws. Unless a resolution of the Board expressly provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock of the Corporation. All committees of the Board
shall report their proceedings to the Board when required.
SECTION 9. ACTION WITHOUT A MEETING. Unless otherwise restricted by the
Certificate 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 any
committee thereof consent thereto in writing.
- 10 -
<PAGE> 11
SECTION 10. COMPENSATION. The Board of Directors shall have the authority
to fix the compensation of directors for their services. A director may also
serve the Corporation in other capacities and receive compensation therefor.
SECTION 11. TELEPHONIC MEETING. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board, or any committee designated
by the Board, may participate in a meeting by means of conference telephone or
similar communications equipment in which all persons participating in the
meeting can hear each other. Participation in such telephonic meeting shall
constitute the presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall include a President, a
Secretary and one or more subordinate officers, all of whom shall be elected by
the Board of Directors and who shall hold office for a term of one year and
until their successors are elected and qualify or until their earlier
resignation or removal. In addition, the Board of Directors may elect a
Chairman of the Board, one or more Vice Presidents, including an Executive Vice
President, a Treasurer and one or more Assistant Treasurers and one or more
Assistant Secretaries, who shall hold their office for such terms and shall
-11-
<PAGE> 12
exercise such powers and perform such duties as shall be determined from time
to time by the Board of Directors. The initial officers shall be elected at the
first meeting of the Board of Directors and, thereafter, at the annual
organizational meeting of the Board held after each annual meeting of the
stockholders. Any number of offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint
such other officers and agents as it deems advisable, who shall hold their
office for such terms and shall exercise and perform such powers and duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors shall be a
member of the Board and shall preside at all meetings of the Board of Directors
and of the stockholders. In addition, the Chairman of the Board shall have such
powers and perform such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the Chief Executive Officer
of the Corporation. He shall exercise such duties as customarily pertain to the
office of President and Chief Executive Officer, and shall have general and
active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board. He shall perform such
other duties as prescribed from time to time by the Board or these By-Laws.
-12-
<PAGE> 13
In the absence, disability or refusal of the Chairman of the Board to act,
or the vacancy of such office, the President shall preside at all meetings of
the stockholders and of the Board of Directors. Except as the Board of
Directors shall otherwise authorize, the President shall execute bonds,
mortgages and other contracts on behalf of the Corporation, and shall cause the
seal to be affixed to any instrument requiring it and, when so affixed, the
seal shall be attested by the signature of the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE PRESIDENTS. Each Vice President, if any are elected, of
whom one or more may be designated an Executive Vice President, shall have such
powers and shall perform such duties as shall be assigned to him by the
President or the Board of Directors.
SECTION 6. TREASURER. The Treasurer shall have custody of the corporate
funds, securities, evidences of indebtedness and other valuables of the
Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all
moneys and other valuables in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
-13-
<PAGE> 14
The Treasurer shall disburse the funds of the Corporation, taking proper
vouchers therefor. He shall render to the President and Board of Directors,
upon their request, a report of the financial condition of the Corporation. If
required by the Board of Directors, he shall give the Corporation a bond for
the faithful discharge of his duties in such amount and with such surety as the
Board shall prescribe.
The Treasurer shall have such further powers and perform such other duties
incident to the office of Treasurer as from time to time are assigned to him by
the Board.
SECTION 7. SECRETARY. The Secretary shall be the Chief Administrative
Officer of the Corporation and shall: (a) cause minutes of all meetings of the
stockholders and directors to be recorded and kept; (b) cause all notices
required by these By-Laws or otherwise to be given properly; (c) see that the
minute books, stock books, and other nonfinancial books, records and papers of
the Corporation are kept properly; and (d) cause all reports, statements,
returns, certificates and other documents to be prepared and filed when and as
required. The Secretary shall have such further powers and perform such other
duties as prescribed from time to time by the Board.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each Assistant
Treasurer and each Assistant Secretary, if any are elected, shall be vested
with all the powers and
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<PAGE> 15
shall perform all the duties of the Treasurer and Secretary, respectively, in
the absence or disability of such officer, unless or until the Board of
Directors shall otherwise determine. In addition, Assistant Treasurers and
Assistant Secretaries shall have such powers and shall perform such duties as
shall be assigned to them by the Board.
SECTION 9. CORPORATE FUNDS AND CHECKS. The funds of the Corporation shall
be kept in such depositories as shall from time to time be prescribed by the
Board of Directors. All checks or other orders for the payment of money shall
be signed by the President or the Treasurer or such other person or agent as
may from time to time be authorized and with such counter-signature, if any, as
may be required by the Board of Directors.
SECTION 10. CONTRACTS AND OTHER DOCUMENTS. The President or Treasurer,
or such other officer or officers as may from time to time be authorized by the
Board of Directors, shall have power to sign and execute on behalf of the
Corporation deeds, conveyances and contracts, and any and all other documents
requiring execution by the Corporation.
SECTION 11. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The President or
the Treasurer, or such other officer or agent as shall be authorized by the
Board of Directors, shall have the power and authority, on behalf of the
Corporation, to
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<PAGE> 16
attend and to vote at any meeting of stockholders of any corporation in which
the Corporation holds stock and may exercise, on behalf of the Corporation, any
and all of the rights and powers incident to the ownership of such stock at any
such meeting, including the authority to execute and deliver proxies and
consents on behalf of the Corporation.
SECTION 12. DELEGATION OF DUTIES. In the absence, disability or refusal
of any officer to exercise and perform his duties, the Board of Directors may
delegate to another officer such powers or duties.
SECTION 13. RESIGNATION AND REMOVAL. Any officer of the Corporation may
be removed from office for or without cause at any time by the Board of
Directors. Any officer may resign at any time in the same manner prescribed
under Section 3 of Article III of these By-Laws.
SECTION 14. VACANCIES. The Board of Directors shall have power to fill
vacancies occurring in any office.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. 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 Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or
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<PAGE> 17
an Assistant Secretary, certifying the number and class of shares of stock in
the Corporation owned by him. Any or all of the signatures on the certificate
may be facsimile. The Board of Directors shall have the power to appoint one or
more transfer agents and/or registrars for the transfer or registration of
certificates of stock of any class, and may require stock certificates to be
countersigned or registered by one or more of such transfer agents and/or
registrars.
SECTION 2. TRANSFER OF SHARES. Shares of stock of the Corporation shall be
transferable upon its books by the holders thereof, in person or by their duly
authorized attorneys or legal representatives, upon surrender to the Corporation
by delivery thereof to the person in charge of the stock and transfer books and
ledgers. Such certificates shall be cancelled and new certificates shall
thereupon be issued. A record shall be made of each transfer. Whenever any
transfer of shares 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, both the transferor and transferee request the Corporation to do so.
The Board shall have power and authority to make such rules and regulations as
it may deem necessary or proper concerning the issue, transfer and registration
of certificates for shares of stock of the Corporation.
-17-
<PAGE> 18
SECTION 3. LOST CERTIFICATES. A new certificate of stock may be issued in
the place of any certificate previously issued by the Corporation, alleged to
have been lost, stolen, destroyed or mutilated, and the Board of Directors may,
in their discretion, require the owner of such lost, stolen, destroyed or
mutilated certificate, or his legal representative, to give the Corporation a
bond, in such sum as the Board may direct, not exceeding double the value of the
stock, in order to indemnify the Corporation against any claims that may be made
against it in connection therewith.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder
thereof, in fact, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise
expressly provided by law.
SECTION 5. STOCKHOLDERS RECORD DATE. 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, 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,
-18-
<PAGE> 19
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which shall not be more than
sixty days nor less than ten days before the date of such meeting. 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.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may at any regular or special meeting,
out of funds legally available therefor, declare dividends upon the stock of
the Corporation. Before the declaration of any dividend, the Board of Directors
may set apart, out of any funds of the Corporation available for dividends,
such sum or sums as from time to time in their discretion may be deemed proper
for working capital or as a reserve fund to meet contingencies or for such
other purposes as shall be deemed conducive to the interests of the Corporation.
-19-
<PAGE> 20
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever any written notice is required to be given by
law, the Certificate of Incorporation or these By-Laws, such notice, if mailed,
shall be deemed to be given when deposited in the United States mail, postage
pre-paid, addressed to the person entitled to such notice at his address as it
appears on the books and records of the Corporation. Such notice may also be
sent by telegram.
SECTION 2. WAIVER OF NOTICE. Whenever notice is required to be given by
law, 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
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of the stockholders, directors,
or members of a committee of the Board need be specified in any written waiver
of notice.
-20-
<PAGE> 21
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-Laws may be amended or repealed or new
By-Laws may be adopted by the affirmative vote of a majority of the Board of
Directors at any regular or special meeting of the Board. If any By-Law
regulating an impending election of directors is adopted, amended or repealed
by the Board, there shall be set forth in the notice of the next meeting of
shareholders for the election of directors the By-Law(s) so adopted, amended,
or repealed, together with a precise statement of the changes made. By-Laws
adopted by the Board of Directors may be amended or repealed by shareholders.
ARTICLE VIII
SECTION 1. SEAL. The seal of the Corporation shall be circular in form and
shall have the name of the Corporation on the circumference and the jurisdiction
and year of incorporation in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall end on
December 31 of each year, or such other twelve consecutive months as the Board
of Directors may designate.
SECTION 3. INDEMNIFICATION. The Corporation shall, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, indemnify
members of the Board and
-21-
<PAGE> 22
may, if authorized by the Board, indemnify its officers, employees and agents
and any and all persons whom it shall have power to indemnify against any and
all expenses, liabilities or other matters.
-22-
<PAGE> 1
EXHIBIT 3.114
[SEAL]
<PAGE> 2
EXHIBIT A
STATE OF DELAWARE
[SEAL]
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "MEEKER TELEVISION, INC.", FILED IN THIS OFFICE ON THE
TWENTY-FIFTH DAY OF SEPTEMBER, A.D. 1979, AT 9 O'CLOCK A.M.
**********
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3356400
DATE: 02/24/1979
<PAGE> 3
CERTIFICATE OF INCORPORATION
OF
MEEKER TELEVISION, INC.
1. The name of the Corporation is MEEKER TELEVISION, INC.
2. The registered office of the Corporation is to be located at 229
South State Street in the City of Dover, in the County of Kent, in the State of
Delaware. The name of its registered agent at that address is The Prentice-
Hall Corporation Systems, Inc.
3. The purposes for which the Corporation is formed are:
To engage in all phases and aspects of the television and film industries,
including acting as sales representative for television stations throughout
the world, and to engage in the creation, production, distribution,
licensing and dissemination of filmed, taped and live performances for
artistic, advertising and commercial purposes, including the television
and film industries, and to participate in all kinds of activities and
services related thereto.
4. The total number of shares of all classes of stock which the
Corporation is authorized to issue is 10,000 shares of ten cents ($.10) par
value per share.
5. Subject to the provisions of law, the Corporation may issue shares
of its stock, from time to time for such consideration (not less than the par
value or stated
<PAGE> 4
value thereof) as may be fixed by the Board of Directors, which is expressly
authorized to fix the same in its absolute and uncontrolled discretion,
subject as aforesaid. Shares so issued, for which the consideration has been
paid or delivered to the Corporation, shall be deemed fully paid stock, and
shall not be liable to any further call or assessments thereon, and the holders
of such shares shall not be liable for any further payments in respect of such
shares.
6. Whenever the vote of stockholders at a meeting thereof is required
or permitted to be taken for or in connection with any corporate action by any
provisions of the General Corporation Law of Delaware, the meeting and vote of
stockholders may be dispensed with if the holders of stock having not less than
the minimum percentage of the vote required by statute for the proposed
corporate action shall consent in writing to such corporate action being taken,
provided that prompt notice must be given to all stockholders of the taking
of such corporate action without a meeting and by less than unanimous written
consent.
7. The Board of Directors, at any meeting thereof, may amend or repeal
or adopt new by-laws for the Corporation; provided that any by-law so amended,
repealed or adopted may be amended or repealed by the stockholders at any annual
meeting of stockholders or special meeting of stockholders called for that
purpose.
<PAGE> 5
8. The Corporation shall, to the fullest extent permitted by the
General Corporation Law of Delaware, indemnify any and all persons whom it shall
have power to indemnify from and against any and all of their expenses,
liabilities or other matters.
9. No holder of any shares of any class shall have any preemptive right
to purchase any other shares or securities of any class which may at any time be
sold or offered for sale by the Corporation.
10. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or this Corporation and
its stockholders or any 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 the provisions
of Section 291 of Title 8 of the Delaware Code or the application of trustees,
in dissolution or of any receiver or receivers appointed for this 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 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,
<PAGE> 6
as the case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as a 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.
11. The name and mailing address of the incorporator is as follows:
Bernard J. Meislin, Esq.
90 Broad Street
New York, N.Y. 10004
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, makes this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and
accordingly, have hereunto set his hand this 20 day of September, 1978.
/s/ BERNARD J. MEISLIN
-------------------------------------
Bernard J. Meislin
<PAGE> 7
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 20 day of September 1978, personally came
before me, a Notary Public for the State of New York, BERNARD J. MEISLIN,
known to me personally to be such, acknowledged to me the foregoing
Certificate of Incorporation to be his act and deed and that the facts stated
therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ ALAN PLOTKIN
------------------------------------
Notary Public
ALAN PLOTKIN
NOTARY PUBLIC, STATE OF NEW YORK
NO. 314418185
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES MARCH 30, 1979
<PAGE> 8
STATE OF DELAWARE
[SEAL]
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "MEEKER TELEVISION, INC.", FILED IN THIS OFFICE ON THE SIXTEENTH
DAY OF JANUARY, A.D. 1981, AT 9 O'CLOCK A.M.
**********
/s/ MICHAEL RATCHFORD
[SEAL] -------------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3256401
DATE: 02/24/1981
<PAGE> 9
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MEEKER TELEVISION, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware it is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is MEEKER TELEVISION, INC.
2. The Certificate of Incorporation of the Corporation 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 Corporation is SELTEL INC."
3. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Sections 228 and 242
of the General Corporation Law of the State of Delaware.
Signed and attested to on January 16, 1981.
/s/ ARTHUR STRINGER
----------------------------------------
Arthur Stringer, President
ATTEST:
/s/ ARTHUR STRINGER
- ----------------------------------------
Arthur Stringer, Secretary
<PAGE> 10
STATE OF DELAWARE
[SEAL]
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CHANGE OF ADDRESS OF REGISTERED AGENT AS IT APPLIES TO "SELTEL INC.", AS
RECEIVED AND FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF OCTOBER, A.D.
1989, AT 4:30 O'CLOCK P.M.
**********
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3356403
DATE: 02/24/1989
<PAGE> 11
CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
TO: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware Code,
the undersigned Agent for service of process, in order to change the address of
the registered office of the corporations for which it is registered agent,
hereby certifies that:
1. The name of the agent is The Prentice-Hall Corporation System, Inc.
2. The address of the old registered office was 229 South State Street,
Dover, Kent County, Delaware 19901.
3. The address to which the registered office is to be changed is 32
Loockerman Square, Suite L-100, Dover, Kent County, Delaware 19901. The new
address will be effective on October 27, 1989.
4. The names of the corporations represented by said agent are set
forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be signed
on its behalf by its Vice President and Assistant Secretary this 10th day of
October 1989.
THE PRENTICE-HALL CORPORATION SYSTEM, INC.
/s/ ALAN E. SPIEWAK
------------------------------------------
Alan Spiewak, Vice President
ATTEST:
/s/ [ILLEGIBLE]
- -------------------------------------
<PAGE> 12
CHANGE OF ADDRESS FILING FOR
PRENTICE-HALL CORPORATION SYSTEM, INC. AS OF OCTOBER 27, 1989
** DOMESTIC **
<TABLE>
<S> <C> <C> <C>
0858505 TRINITY HUSTON CORPORATION 08/11/1978 D DE
0858649 EMCO ESTATE MANAGEMENT COMPANY, INC. 08/16/1978 D DE
0858679 JAAND PRODUCTIONS, INC. 08/16/1978 D DE
0858708 ENYO CORPORATION 08/17/1978 D DE
0858714 RANK VIDEO CORP. 08/17/1978 D DE
0858829 COMMUNICATIONS SYSTEMS INTERNATIONAL, INC. 08/21/1978 D DE
0858923 TEXACO JAMBI INC. 08/22/1978 D DE
0858966 HUBER BROTHERS CORP. 08/23/1978 D DE
0858991 AMOCO CONTAINER COMPANY 08/23/1978 D DE
0859045 HARRISON INDUSTRIES, INC. 08/24/1978 D DE
0859053 VANDERBILT BEACH DEVELOPMENT CORPORATION 08/24/1978 D DE
0859097 ATACORP, INC. 08/25/1978 D DE
0859117 FRANKLIN 253 CORP. 08/25/1978 D DE
0859175 PEMBROKE CAPITAL COMPANY INC. 08/28/1978 D DE
0859187 CAPITOL-EMI MUSIC, INC. 08/28/1978 D DE
0859264 CAMP FARM MANAGEMENT, INC. 08/29/1978 D DE
0859265 HUGHES SEED FARMS, INC. 08/29/1978 D DE
0859279 SKYCAB, INC. 08/30/1978 D DE
0859294 OLYMPIA DODGE OF COUNTRYSIDE, INC. 08/30/1978 D DE
0859405 CARLSTADT, S.A. 08/31/1978 D DE
0859414 CHARLESTON ELEVATOR, INC. 08/31/1978 D DE
0859475 HOK DEVELOPMENT - FLORIDA CORPORATION 09/01/1978 D DE
0859483 THE CLARKSON COMPANIES INCORPORATED 09/05/1978 D DE
0859488 AUDIO EXPRESS, INC. 09/05/1978 D DE
0859522 KEIHIN AMERICA CORPORATION 09/05/1978 D DE
0859530 TIME OUT INC. OF DELAWARE 09/05/1978 D DE
0859610 ORION PROPERTIES CORPORATION 09/06/1978 D DE
0859740 MARKET VIEW, INC. 09/11/1978 D DE
0859780 CYCLOPS WELDING COMPANY 09/11/1978 D DE
0859781 MARY CARTER PAINT COMPANY 09/11/1978 D DE
0859845 SUSSEX GROUP OF DELAWARE, INC. 09/12/1978 D DE
0859884 ASSOCIATES FIRST NATIONAL CORPORATION 09/13/1978 D DE
0859925 TIMBER ESTATES, INC. 09/14/1978 D DE
0859976 J V SUPERMART, INC. 09/14/1978 D DE
0860039 SCHNEIDER & JENSEN CONSTRUCTION COMPANY 09/15/1978 D DE
0860074 QUIMAL INTERNATIONAL, INC. 09/18/1978 D DE
0860109 CUNDIFF CONSTRUCTION CO., INC. 09/18/1978 D DE
0860118 RICHARD'S MEAT PRODUCTS COMPANY, INC. 09/18/1978 D DE
0860254 LATAS DE ALUMINIO REYNOLDS, INC. 09/20/1978 D DE
0860299 LETTUCE ENTERTAIN YOU TOO, INC. 09/21/1978 D DE
0860395 RNR, INC. 09/22/1978 D DE
0860411 SELTEL INC. 09/25/1978 D DE
0860484 HOG HAVEN, INC. 09/25/1978 D DE
0860512 FIFTH CENTURY COMPANY 09/26/1978 D DE
0860523 TROPICAL PLANT GROWERS OF NORTH AMERICA, LTD. 09/26/1978 D DE
0860613 INDEPENDENT PROPERTIES SALES CORPORATION 09/27/1978 D DE
</TABLE>
<PAGE> 13
STATE OF DELAWARE
[SEAL]
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "SELTEL, INC.", FILED IN THIS OFFICE ON THE TWENTY-FOURTH DAY OF
NOVEMBER, A.D. 1989, AT 9 O'CLOCK A.M.
**********
/s/ MICHAEL RATCHFORD
[SEAL] -----------------------------------
Michael Ratchford, Secretary of State
AUTHENTICATION: *3356404
DATE: 02/24/1989
<PAGE> 14
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SELTEL INC.
-----------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
-----------------------------------------------
We, Cheryl Chase Freedman and Theodore Fichtenholtz, Executive Vice
President and Assistant Secretary of Seltel Inc., a corporation existing under
the laws of the State of Delaware, do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has been
amended as follows:
By striking out the whole of Article 8 thereof as it now exists and
inserting in lieu and instead thereof a new Article 8 reading as follows:
"8 (a) The Corporation shall, to the fullest extent permitted by Section
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 the 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 By-Law, 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 person.
(b) No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a Director. Notwithstanding the foregoing, a Director
shall be liable to the extent provided by applicable law (i) for breach of
the Director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts of omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from
which the Director derived an improper personal benefit. No amendment to or
repeal of these provisions shall apply to or have any effect on the
<PAGE> 15
liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to
such amendment."
SECOND: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
unanimous written consent of all of the stockholders entitled to vote in
accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, we have signed this certificate this 3rd day of
November, 1989.
/s/ CHERYL CHASE FREEDMAN
----------------------------------------
Cheryl Chase Freedman
Executive Vice President
ATTEST:
/s/ THEODORE FICHTENHOLTZ
----------------------------------------
Theodore Fichtenholtz
Assistant Secretary
<PAGE> 1
EXHIBIT 3.115
EXHIBIT B
AMENDED AND RESTATED (as of September 10, 1990)
BY-LAWS
OF
SELTEL INC.
OFFICES
1. The principal office shall be in The County of Hartford, State of
Connecticut or such other place as the Board of Directors shall from time to
time designate. The corporation may also have offices at such other places as
the Board of Directors may from time to time designate or the business of the
corporation may require.
SEAL
2. The seal of the corporation shall be circular in form and contain the
name of the corporation, the state of incorporation and the word "Seal."
SHAREHOLDER'S MEETINGS
3. All meetings of the shareholders shall be held at the principal office
of the corporation in Connecticut or at such other place or places, within or
without the state, as shall be fixed by the directors of the President or
Secretary and specified in the notice of the meeting.
4. The annual meeting of shareholders for the election of directors and
the transaction of such other business as may come before the shareholders for
action shall be held each year, on the date designated by the directors, or if
not so designated, during the second week in September. Upon a failure to hold
an annual meeting at the designated time, a substitute annual meeting may be
called in the same manner as a special meeting, or as allowed by the law of
the state of incorporation.
<PAGE> 2
If the annual meeting date shall fall upon a legal holiday, the meeting
shall be held on the next succeeding business day. All meetings of shareholders
shall be presided over by the President, or a Vice-President, if present.
5. The holders of a majority of the voting power of the shares issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite for, and shall constitute a quorum at all meetings of
the shareholders for the transaction of business, except as otherwise required
by law, or by the Certificate of Incorporation or any amendment thereto, or by
these by-laws. The shareholders present at a duly held meeting at which a quorum
is present may continue to do business as long as a quorum is present.
6. Except as otherwise required by law, by the Certificate of
Incorporation, or by these by-laws, the affirmative vote, at a meeting of
shareholders duly held and at which a quorum is present, of a majority of the
voting power of shares represented at such meeting which are entitled to vote
on the subject matter shall be the act of the shareholders.
In any matter concerning the vote, election and/or appointment by the
shareholders, such vote, election and/or appointment shall be made only by the
holders of the shares entitled to vote.
7. At each meeting of the shareholders each shareholder having the right
to vote shall be entitled to vote in person, or by proxy appointed by
instrument executed in writing by such shareholder, or by his duly authorized
attorney, but no proxy shall be valid after the expiration of eleven months
from the date of its execution unless the shareholder executing it shall have
specified therein the length of the time it is to continue in force. Except
<PAGE> 3
for proxies which are irrevocable and qualified as such under the law of the
state of incorporation, no proxy shall be valid after ten years from its date of
execution.
8. Special meetings of the shareholders for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the President, and shall be
called by the President or the Secretary at the request in writing of a majority
of the Board of Directors. Upon the written request of the holders of not less
than one-tenth of the voting power of all shares entitled to vote at such
meeting, the President shall call a special shareholders' meeting for the
purposes specified in such request and cause notice thereof to be given. If the
President shall not, within fifteen (15) days after the receipt of such
shareholders' request, so call such meeting, such shareholders may call the
same.
9. Shareholders shall receive not less than seven (7) nor more than fifty
(50) days' notice of any meetings of shareholders.
10. Any action required to be taken at a meeting of shareholders, may be
taken without a meeting by the 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.
DIRECTORS
11. The business, property and affairs of the corporation shall be managed
by its Board of Directors, who need not be shareholders. Each director shall
hold office for a term of one (1) year and until his successor is elected and
qualifies or until his prior death, resignation or removal. The entire Board of
Directors shall consist of not more than five nor less than three directors
except that where all the issued and outstanding shares
<PAGE> 4
are owned beneficially and of record by less than three shareholders, the number
may be less than three but not less than the number of shareholders. The
directors shall be elected at the annual meeting of shareholders or, if no such
election shall be held, at a meeting called and held in accordance with the
provisions of the laws of the State of Delaware. The Board of Directors or the
Shareholders may elect a member of the Board to be Chairman or members to be
Co-Chairmen of the Board of Directors. The Chairman or a Co-Chairman of the
Board of Directors, if one be elected, shall preside at all meetings of the
Board of Directors, if one be elected, shall preside at all meetings of the
Board of Directors and he shall have and perform such other duties as from time
to time may be assigned to him by the Board of Directors. The Chairman or any
Co-Chairman shall have all of the powers of the President.
12. Any directors elected or appointed by the shareholders or by the Board
of Directors may be removed at any time with or without cause, by the
affirmative vote of the holders of a majority of the outstanding shares of stock
at the time having full voting power.
13. Regular meetings of the Board may be held without notice at such time
and place within or without the State as shall from time to time be designated
by a majority of the Board.
14. Special meetings of the Board may be called by the President or a
Vice-President or any two directors and may be held at the time and place
designated in the call and notice of the meeting. The Secretary or other officer
performing his duties shall give notice either personally or by mail or telegram
at least two days before the meeting. Meetings may be held at any time and place
without notice if all the directors are present or if those not present waive
notice either before or after the meeting.
<PAGE> 5
15. At all meetings of the Board a majority of the number of
directorships at the time shall constitute a quorum for the transaction of
business except as may be otherwise specifically required by law or by the
Certificate of Incorporation or by these by-laws. At all meetings of the Board
of Directors, each director shall have one vote irrespective of the number of
shares he may hold. The act of a majority of the directors present at a meeting
at which a quorum is present at the time of the act shall be the act of the
Board, except as otherwise required by law, by the Certificate of
Incorporation, or these by-laws.
A director may participate in a meeting of the Board by means of a
conference telephone or other communication equipment which would enable all
the directors participating in the meeting to hear one another and such
arrangement shall be the equivalent of personal presence at such meeting of the
director or directors using such communication device.
16. Directors, as such, shall not receive any stated salary for their
services, but by resolution of a majority of the Board, a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each regular
or special meeting of the Board; but nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation thereof.
17. The Board of Directors, by resolution adopted by a majority of the
Board, may designate from its members an Executive Committee or other committee
or committees, each consisting of two or more members, with such powers and
authority as may be provided in said resolution.
<PAGE> 6
18. 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 prior to such action a written consent thereto is signed by all
members of the Board, or of such committee as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
OFFICERS
19. The Board of Directors shall appoint a President, a Treasurer and a
Secretary and, at any regular or special meeting, may appoint such other
officers and agents as it shall deem necessary, including, but without limiting
the generality of the foregoing, a Chief Executive Officer, one or more Vice
Presidents or Executive Vice Presidents, one or more Assistant Secretaries and
one or more Assistant Treasurers, each of which said appointees shall hold his
office for such terms and shall exercise such powers and perform such duties,
including the powers and duties of any other officer if so delegated to him, as
shall be determined from time to time by the Board. Any two or more offices may
be held by the same person, except the offices of President and Secretary.
20. The President, the Treasurer and the Secretary of the corporation
shall each respectively hold office until the first meeting of the Board of
Directors after the next succeeding annual meeting of shareholders and until
their respective successors are chosen and qualify in their stead.
21. Any officer may be removed at any time, with or without cause, by the
affirmative vote of a majority of the whole Board of Directors. Any other
employee of the corporation may be removed at any time with or without cause,
either (a) by a vote of a majority of the directors present at any meeting of
the Board at which a quorum is present or (b) by any superior
<PAGE> 7
officer upon whom such power of removal may be conferred by the by-laws or by
resolution of the Board of Directors.
THE CHIEF EXECUTIVE OFFICER
22. The Chief Executive Officer shall have the same powers as the
President and shall have overall supervisory powers in overseeing the business
and affairs of the corporation.
THE PRESIDENT
23. (a) The President shall have general supervision, direction and
control of the business and affairs of the company, and shall preside at all
meetings of the shareholders, and shall have such other duties as required by
law, by the Certificate of Incorporation, or by these by-laws.
(b) He shall be the Chairman of all standing committees, and shall
have the general powers and duties of supervision and management usually vested
in the office of President of a corporation.
VICE PRESIDENT
24. During the absence or incapacity of the President, the Executive Vice
President or Vice President in order of seniority of election shall perform the
duties of the President, and when so acting, he shall have all the powers and
be subject to all the responsibilities of the office of President and shall
perform such duties and functions as the Board may prescribe.
<PAGE> 8
THE SECRETARY
25. The Secretary shall attend all sessions of the Board and all meetings
of the shareholders and all standing committees and 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 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
be sworn to the faithful discharge of his duty. Any records kept by him shall
be the property of the corporation and shall be restored to the corporation in
case of his death, resignation, retirement or removal from office. He shall be
the custodian of the seal of the corporation, the stock ledger, stock
certificate book and minute book of the corporation and its committees, and
other formal records and documents relating to the corporate affairs of the
company.
THE TREASURER
26. (a) 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.
(b) He shall have the authority to, make, sign, and endorse in the
name of the corporation all checks, drafts, notes, and other orders for the
payment of money, and disburse the funds of the corporation in such manner
<PAGE> 9
as may be ordered by the President or the Board, taking proper vouchers for such
disbursements and shall render to the President and directors, at the regular
meetings of the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the corporation.
(c) He shall give the corporation a bond, if required by the Board of
Directors, in such sum, and with one or more sureties 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.
VACANCIES
27. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, removal or otherwise, the directors
then in office, although they may be less than a quorum, by a majority vote, may
choose a successor or successors, who shall hold office for the unexpired term
in respect of which such vacancy occurred. Except that an increase in the number
of directors by amendment of the by-laws shall not be deemed to have created a
vacancy or vacancies which the directors then in office may fill, and such
vacancy shall be filled for the unexpired term at a meeting of shareholders.
<PAGE> 10
CHECKS, NOTES, BONDS AND OTHER INSTRUMENTS
28. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers of the corporation as may from time to time
be so authorized and empowered by these by-laws or by resolution of the Board.
Contracts shall be signed by the Chairman of the Board, Chief Executive
Officer, President or a Vice President, except as otherwise authorized by vote
or unanimous consent of the Board of Directors of the Corporation.
FISCAL YEAR
29. The fiscal year shall be such fiscal year as the Board of Directors
may determine.
DIVIDENDS
30. The Board of Directors at any regular or special meeting may declare
dividends payable out of the surplus of the corporation, whenever in the
exercise of its discretion it may deem such declaration advisable. Such
dividends may be paid in cash, property, or shares of the corporation.
<PAGE> 11
NOTICES
31. Whenever under the provisions of the by-laws notice is required to be
given to any director, officer or shareholder, it shall not be construed to
require personal notice, but such notice may be given in writing by mail, by
depositing a copy of the same in a post office, letter box, or mail chute,
maintained by the Post Office Department, in a postpaid sealed wrapper,
addressed to such shareholder, officer or director at his last known post
office address.
A shareholder, director or officer may waive any notice required to be
given to him under these by-laws.
AMENDMENTS
32. These by-laws may be altered, amended, repealed or new by-laws may be
substituted, added or adopted either (a) by the affirmative vote of
shareholders holding a majority of the stock issued and outstanding and
entitled to vote at any annual or special meeting of the shareholders in
respect of which written notice of such proposed action shall have been given
in the call for such meeting, or (b) by resolution duly adopted by a majority
of the Board at a special meeting called for such purpose.
<PAGE> 1
EXHIBIT 3.116
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "KATZ CABLE CORPORATION", FILED IN THIS OFFICE ON THE
THIRTIETH DAY OF DECEMBER, A.D. 1994, AT 1:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386132
DATE: 11-04-98
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
KATZ CABLE CORPORATION
* * * * *
FIRST: The name of the Corporation is Katz Cable Corporation.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of its registered agent at such 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 the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100, and the par value of each such share is $1.00,
amounting in the aggregate to $100.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
---- ---------------
Patricia Long Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
The power of the incorporator as such shall terminate upon the filing of this
Certificate of Incorporation.
1
<PAGE> 3
SIXTH: The names and mailing addresses of the persons who are to serve as
directors until the first annual meeting of stockholders or until their
successors are elected and qualified are:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Thomas J. Barry 140 Broadway
New York, NY 10005
David M. Wittels 140 Broadway
New York, NY 10005
</TABLE>
SEVENTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
EIGHTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
NINTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by Delaware Law. The right to indemnification conferred in this
ARTICLE NINTH shall also include the right to be paid by the Corporation the
expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right
to indemnification conferred in this ARTICLE NINTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the [officers,] employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
2
<PAGE> 4
(3) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE NINTH shall not be
exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE NINTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE NINTH
in respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
TENTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE NINTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
3
<PAGE> 5
IN WITNESS WHEREOF, I have hereunto signed my name this 28th day of
December, 1994.
/s/ PATRICIA LONG
-----------------------
Patricia Long
4
<PAGE> 1
EXHIBIT 3.117
AMENDED AND RESTATED BYLAWS
OF
KATZ CABLE CORPORATION
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE ONE: OFFICES
<S> <C> <C>
1.1 Registered Office and Agent.................................................................. 1
1.2 Other Offices................................................................................ 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting............................................................................... 1
2.2 Special Meeting.............................................................................. 1
2.3 Place of Meetings............................................................................ 2
2.4 Notice....................................................................................... 2
2.5 Voting List.................................................................................. 2
2.6 Quorum....................................................................................... 3
2.7 Required Vote; Withdrawal of Quorum.......................................................... 3
2.8 Method of Voting; Proxies.................................................................... 3
2.9 Record Date.................................................................................. 3
2.10 Conduct of Meeting........................................................................... 4
2.11 Inspectors................................................................................... 5
ARTICLE THREE: DIRECTORS
3.1 Management................................................................................... 5
3.2 Number; Qualification; Election; Term........................................................ 5
3.3 Change in Number............................................................................. 6
3.4 Removal...................................................................................... 6
3.5 Vacancies.................................................................................... 6
3.6 Meetings of Directors........................................................................ 7
3.7 First Meeting................................................................................ 7
3.8 Election of Officers......................................................................... 7
3.9 Regular Meetings............................................................................. 7
3.10 Special Meetings............................................................................. 7
3.11 Notice....................................................................................... 7
3.12 Quorum; Majority Vote........................................................................ 7
3.13 Procedure.................................................................................... 8
3.14 Presumption of Assent........................................................................ 8
3.15 Compensation................................................................................. 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE FOUR: COMMITTEES
<S> <C> <C>
4.1 Designation.................................................................................. 8
4.2 Number; Qualification; Term.................................................................. 8
4.3 Authority.................................................................................... 8
4.4 Committee Changes............................................................................ 9
4.5 Alternate Members of Committees.............................................................. 9
4.6 Regular Meetings............................................................................. 9
4.7 Special Meetings............................................................................. 9
4.8 Quorum; Majority Vote........................................................................ 9
4.9 Minutes...................................................................................... 9
4.10 Compensation................................................................................. 9
4.11 Responsibility................................................................................ 10
ARTICLE FIVE: NOTICE
5.1 Method........................................................................................ 10
5.2 Waiver........................................................................................ 10
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office................................................................ 10
6.2 Removal....................................................................................... 11
6.3 Vacancies..................................................................................... 11
6.4 Authority..................................................................................... 11
6.5 Compensation.................................................................................. 11
6.6 Chairman of the Board......................................................................... 11
6.7 President..................................................................................... 11
6.8 Vice Presidents............................................................................... 11
6.9 Treasurer..................................................................................... 12
6.10 Assistant Treasurers.......................................................................... 12
6.11 Secretary..................................................................................... 12
6.12 Assistant Secretaries......................................................................... 12
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares....................................................................... 12
7.2 Replacement of Lost, Stolen, or Destroyed Certificates........................................ 13
7.3 Transfer of Shares............................................................................ 13
7.4 Registered Stockholders....................................................................... 13
7.5 Regulations................................................................................... 13
7.6 Legends....................................................................................... 13
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
<S> <C> <C>
8.1 Dividends..................................................................................... 14
8.2 Reserves...................................................................................... 14
8.3 Books and Records............................................................................. 14
8.4 Fiscal Year................................................................................... 14
8.5 Seal.......................................................................................... 14
8.6 Resignations.................................................................................. 14
8.7 Securities of Other Corporations.............................................................. 14
8.8 Telephone Meetings............................................................................ 14
8.9 Action Without a Meeting...................................................................... 15
8.10 Invalid Provisions............................................................................ 15
8.11 Mortgages, etc................................................................................ 16
8.12 Headings...................................................................................... 16
8.13 References.................................................................................... 16
8.14 Amendments.................................................................................... 16
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
KATZ CABLE CORPORATION
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "DGCL") and the certificate of incorporation
of Katz Cable Corporation, a Delaware corporation (the "Corporation"). In the
event of a direct conflict between the provisions of these bylaws and the
mandatory provisions of the DGCL or the provisions of the certificate of
incorporation of the Corporation, such provisions of the DGCL or the certificate
of incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President or the board of
directors. Further, a special meeting of the stockholders shall be called by the
President or the Secretary at the request in writing of the stockholders of
record of not less than ten percent of all shares entitled to vote at
such meeting or as otherwise provided by the certificate of incorporation of the
Corporation.
1
<PAGE> 6
A special meeting shall be held on such date and at such time as shall be
designated by the person(s) calling the meeting and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 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
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, notice is given
when deposited in the United States mail, postage prepaid, directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare and make a complete list of stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. For a period of
at least ten days prior to such meeting, such list shall be kept on file at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder, for any purpose germane to
the meeting, during ordinary business hours. Such list shall also be produced at
such meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2
<PAGE> 7
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, 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 stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation or any amendment(s) thereto, or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by another person or persons duly authorized under
Section 212 of the DGCL to act for him as proxy. Each 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 three years from the date of its execution, unless
otherwise provided in the proxy. If no date is stated in a proxy, such proxy
shall be presumed to have been executed on the date of the meeting at which it
is to be voted. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and coupled with an interest sufficient in law to support an
irrevocable power or unless otherwise made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, 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
3
<PAGE> 8
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 by the board of directors, and which record
date shall not be more than 60 days and not less than ten days prior to such
meeting. If no record date is fixed:
(i) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held.
(ii) The record date for determining stockholders 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.
(iii) 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.
(b) 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 stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, 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
in the State of Delaware, principal place of business, or such officer or agent
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 law or these bylaws, 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.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's
4
<PAGE> 9
duties shall be performed by the officer given the authority to act for such
absent or non-acting officer under these bylaws or by some person appointed by
the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting and make
a written report thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and ballots 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
results, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by them, certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. The inspector(s) shall
perform his duties in accordance with Section 231 of the DGCL. On request of the
chairman of the meeting, the inspectors shall make a report in writing of any
challenge, request, or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors
which shall constitute the entire board of directors shall be not less than one.
The first board of directors shall consist of the number of directors named in
the certificate of incorporation of the Corporation. In which case a change in
the number of directors shall be made only by amendment of the certificate. If
no directors are named in the certificate of incorporation, the first board of
directors shall consist of the number of directors elected by the
incorporator(s) at an organizational meeting or by unanimous written consent in
lieu thereof. Thereafter, within the limits above specified, the number of
directors which shall constitute the entire board of directors shall be
determined by resolution of the board of directors or by resolution of the
stockholders at the annual meeting thereof or at a special meeting thereof
called for that purpose. Except as otherwise required by law, the certificate of
incorporation of the
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Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. 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. Each director so chosen
shall hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director 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 then entitled to vote on the election of directors; provided,
however, that so long as stockholders have the right to cumulate votes in the
election of directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed, no one
of the directors 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.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least 10% of the
total number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly-created directorships, or to replace the directors chosen by
the directors then in office. Except as otherwise provided in these bylaws, 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 the 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 in these
bylaws with respect to the filling of other vacancies.
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3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 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 stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. 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.
3.12 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
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3.13 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at the 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
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.15 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the board of directors in the management of the business
and affairs of the Corporation except to
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the extent expressly restricted by law, the certificate of incorporation of the
Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for placement in the
minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
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4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, 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 stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends 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 SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall resign
or shall have been removed in the manner hereinafter provided. Any two or more
offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
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6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest 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.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the Board
or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, 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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6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer,
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transfer agent, or registrar before such certificate is issued, such certificate
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. The 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.
7.2 Replacement of Lost, Stolen, or Destroyed Certificates. The board
of directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates 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 or certificates representing
shares to be lost, stolen, 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,
stolen, 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 with a surety or sureties satisfactory to the Corporation in
such sum as it may direct as indemnity against any claim, or expense resulting
from a claim, that may be made against the Corporation with respect to the
certificate or certificates alleged to have been lost, stolen, or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 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.
7.5 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 stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
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ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and 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 stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the 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.
8.8 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the board of directors, and members of a committee of the
board of directors may
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participate in and hold a meeting of such stockholders, board of directors, or
committee by means of a conference telephone or similar communications equipment
by means of which persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at 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.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the DGCL
to be taken at any annual or special meeting of the stockholders, 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 (acting for themselves or through a proxy) 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 the holders of all shares
entitled to vote thereon were present and voted and shall be 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. Every written consent of stockholders 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
days of the earliest dated consent delivered in the manner required by this
Section 8.9(a) to the Corporation, written consents signed by a sufficient
number of holders to take action are 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, principal place of business, or such officer or
agent shall be by hand or by certified or registered mail, return receipt
requested.
(b) Unless otherwise restricted by the certificate of incorporation of
the Corporation or by these bylaws, any action required or permitted to be taken
at a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
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8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or
new bylaws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
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EXHIBIT 3.118
Certificate of Incorporation
of
The National Payroll Company, Inc.
FIRST: The name of the Corporation is: The National Payroll Company, Inc.
(the "Corporation").
SECOND: The registered office of the Corporation and registered agent in
the State of Delaware is to be located at 32 Loockerman Square, Suite L-100 in
the City of Dover, County of Kent. The name of its registered agent is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business, and the objects and purposes proposed
to be transacted, promoted and carried on, are to do any and all things herein
mentioned, as fully and to the same extent as natural persons might or could
do, and in any part of the world, viz:
To do any lawful act or thing for which a corporation may be organized
under the General Corporation Law of the State of Delaware (the "GCL").
FOURTH: The aggregate number of shares of stock which the Corporation
shall have authority to issue is One Thousand (1,000) with a par value of one
cent ($.01) per share, all of which shall be designated "Common Stock".
FIFTH: The name and mailing address of the Incorporator is:
Spencer McAdams
c/o Olshan Grundman Frome & Rosensweig
505 Park Avenue
New York, New York 10022
SIXTH: A. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
directors' duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the GCL is amended 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 GCL, as so amended. Any repeal or
<PAGE> 2
modification of this Paragraph A by the stockholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
with respect to events occurring prior to the time of such repeal or
modification.
B. (1) Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer or employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, 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 GCL as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said 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 or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (2) of this Paragraph B with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Paragraph B shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the GCL requires, the payment of such expenses incurred by a
director or officer 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 person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking by or on behalf of
such director or officer to repay all amounts so advanced if it shall
ultimately be
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<PAGE> 3
determined that such director or officer is not entitled to be indemnified
under this Paragraph B or otherwise.
(2) If a claim under paragraph (1) of this Paragraph B is not paid in full
by the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the GCL for the
Corporation to indemnify the claimant for the amount claimed but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
GCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not set the applicable standard of
conduct.
(3) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Paragraph B shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) 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 GCL.
(5) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation for the expenses incurred in defending any proceeding in
advance of its final disposition, to any agent of the Corporation to the fullest
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<PAGE> 4
extent of the provisions of this Paragraph B with respect to the
indemnification and advancement of expenses of directors, officers and
employees of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of December,
1993.
/s/ Spencer McAdams
---------------------------
Spencer McAdams
Sole Incorporator
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<PAGE> 1
Exhibit 3.119
BY-LAWS
OF
THE NATIONAL PAYROLL COMPANY, INC.
ARTICLE ONE
STOCKHOLDERS
SECTION 1.1 Annual Meetings. An annual meeting of stockholders to
elect directors and transact such other business as may properly be presented to
the meeting shall be held on such date and at such place as the Board of
Directors may from time to time fix, and if that day shall be a legal holiday in
the jurisdiction in which the meeting is to be held, then on the next day not a
legal holiday or as soon thereafter as may be practical as determined by the
Board of Directors.
SECTION 1.2 Special Meetings. A special meeting of stockholders may
be called at any time by the Chairman of the Board, by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole Board (as defined
below) or by the Secretary at the direction of a majority of the voting power of
all the then outstanding shares of the voting stock, voting together as a single
class upon receipt of a written request to do so specifying the matter or
matters, appropriate for action at such a meeting. Any such meeting shall be
held at such time and at such place, within or without the State of Delaware, as
shall be determined by the body or person calling such meeting and as shall be
stated in the notice of such meeting. The Whole Board shall mean the total
number of directors which the Corporation would have if there were no vacancies.
SECTION 1.3 Notice of Meeting. For each meeting of stockholders
written notice shall be given stating the place, date and hour and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
and, if the list of stockholders required by Section 1.9 is not to be at such
place at least 10 days prior to the meeting, the place where such list will be.
Except as otherwise provided by Delaware law, written notice of any meeting
shall be given not less than 10 or more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed to be given when deposited in United States mail, postage
prepaid, directed to stockholder at his address as it appears on the records of
the Corporation.
SECTION 1.4 Quorum. Except as otherwise required by Delaware law or
the Certificate of Incorporation, the holders of record of a majority of the
shares of stock entitled to be voted
<PAGE> 2
present in person or represented by proxy at a meeting shall constitute a quorum
for the transaction of business at the meeting, but in the absence of a quorum
the holders of record present or represented by proxy at such meeting may vote
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is obtained. At any such adjourned session of the
meeting at which there shall be present or represented the holders of record of
the requisite number of shares, any business may be transacted that might have
been transacted at the meeting as originally called.
SECTION 1.5 Chairman and Secretary at Meeting. At each meeting of
stockholders the President, or in his absence the person designated in writing
by the President, or if no person is designated, then a person designated by the
Board of Directors, shall preside as chairman of the meeting; if no person is so
designated, then the meeting shall choose a chairman by plurality vote. The
secretary, or in his absence a person designated by the chairman of the meeting,
shall act as secretary of the meeting.
SECTION 1.6 Voting; Proxies. Except as otherwise provided by Delaware
law or the Certificate of Incorporation, and subject to the provisions of
Section 1.10:
(a) Each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of capital stock
held by him.
(b) 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 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.
(c) Directors shall be elected by a plurality vote.
(d) Each matter, other than election of directors, properly
presented to any meeting shall be decided by a majority of the votes
cast on the matter.
(e) Election of directors and the vote on any other matter
presented to a meeting shall be by written ballot only if so ordered
by the chairman of the meeting or if so requested by any stockholder
present or represented by proxy at the meeting entitled to vote in
such election or on such matter, as the case may be.
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<PAGE> 3
SECTION 1.7 Adjourned Meetings. A meeting of stockholders may be
adjourned to another time or place as provided in Section 1.4 or 1.6 (d).
Unless the Board of Directors fixes a new record date, stockholders of record
for an adjourned meeting shall be as originally determined for the meeting from
which the adjournment was taken. 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 stockholder of record
entitled to vote. At the adjourned meeting any business may be transacted that
might have been transacted at the meeting as originally called.
SECTION 1.8 Consent of Stockholders in Lieu of Meeting. Any action
that 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. Notice of the taking of such
action shall be given promptly to each stockholder that would have been entitled
to vote thereon at a meeting of stockholders and that did not consent thereto in
writing.
SECTION 1.9 List of Stockholders Entitled to Vote. At least 10 days
before every meeting of stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder, shall be prepared and 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 10 days prior to the meeting, at a place within
the city where the meeting is to be held. Such list shall be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.10 Fixing of Record Date. 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, 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 60 or less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of
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<PAGE> 4
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; the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed; and
the record date 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.
ARTICLE TWO
DIRECTORS
SECTION 2.1 Number; Term of Office; Qualifications; Vacancies. The
number of directors that shall constitute the whole Board of Directors shall be
three, which number may be changed from time to time as determined by action of
the Board of Directors taken by the affirmative vote of a majority of the whole
Board of Directors. Directors shall be elected at the annual meeting of
stockholders to hold office, subject to Sections 2.2 and 2.3, until the next
annual meeting of stockholders and until their respective successors are elected
and qualified. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, although less than a quorum, or by the sole
remaining director, and the directors so chosen shall hold office, subject to
Sections 2.2 and 2.3, until the next annual meeting of stockholders and until
their respective successors are elected and qualified.
SECTION 2.2 Resignation. Any director of the Corporation may resign
at any time by giving written notice of such resignation to the Board of
Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective. 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 in these By-Laws in the filling
of other vacancies.
SECTION 2.3 Removal. Any one or more directors may be removed, with
or without cause, by the vote or written consent
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<PAGE> 5
of the holders of a majority of the shares entitled to vote at an election of
directors, or by the Board of Directors.
SECTION 2.4 Regular and Annual Meetings; Notice. Regular meetings of
the Board of Directors shall be held at such time and at such place, within or
without the State of Delaware, as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting, and a notice, if
given, need not specify the purposes thereof. A meeting of the Board of
Directors may be held without notice immediately after an annual meeting of
stockholders at the same place as that at which such meeting was held.
SECTION 2.5 Special Meetings; Notice. A special meeting of the Board
of Directors may be called at any time by the Board of Directors, its Chairman,
the Executive Committee, the President or any person acting in the place of the
President and shall be called by any one of them or by the Secretary upon
receipt of a written request to do so specifying the matter or matters,
appropriate for action at such a meeting, proposed to be presented at the
meeting and signed by at least two directors. Any such meeting shall be held at
such time and at such place, within or without the State of Delaware, as shall
be determined by the body or person calling such meeting. Notice of such meeting
stating the time and place thereof shall be given (a) by deposit of the notice
in the United States mail, first class, postage prepaid, at least two days
before the day fixed for the meeting addressed to each director at his address
as it appears on the Corporation's records or at such other address as the
director may have furnished the Corporation for that purpose, or (b) by delivery
of the notice similarly addressed for dispatch by telegraph, cable or radio or
by delivery of notice by telephone or in person, in each case at least 24 hours
before the time fixed for the meeting.
SECTION 2.6 Chairman of the Board; Presiding Officer and Secretary
at Meetings. The Board of Directors may elect one of its members to serve at its
pleasure as Chairman of the Board. Each meeting of the Board of Directors shall
be presided over by the Chairman of the Board or in his absence by the
President, if a director, or if neither is present by such member of the Board
of Directors as shall be chosen at the meeting. The Secretary, or in his absence
an Assistant Secretary, shall act as secretary of the meeting, or if no such
officer is present, a secretary of the meeting shall be designated by the person
presiding over the meeting.
SECTION 2.7 Quorum. A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business, but in the absence of a
quorum a majority of those present (or if only one be present, then that one)
may adjourn the meeting, without notice other than announcement at the
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<PAGE> 6
meeting, until such time as a quorum is present. Except as otherwise required by
the Certificate of Incorporation or the By-Laws, 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 2.8 Meeting by Telephone. Members of the Board of Directors
or any committee thereof may participate in meetings of the Board of Directors
or of such 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 2.9 Action Without Meeting. Unless otherwise restricted by
the Certificate of Incorporation, 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 of such
committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
of such committee.
SECTION 2.10 Executive and Other Committees. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate an Executive Committee and one or more other committees, each such
committee to consist of one or more directors as the Board of Directors may from
time to time determine. Any such committee, to the extent provided in such
resolution or resolutions, 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, including the power to authorize the seal of the
Corporation to be affixed to all papers that may require it but no such
committee shall have such power of authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws; and unless the resolution shall expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. 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 he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Each such committee
other than the Executive Committee shall have such name as may be determined
from time to time by the Board of Directors.
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<PAGE> 7
SECTION 2.11 Compensation. No director shall receive any stated
salary for his services as a director or as a member of a committee but shall
receive such sum, if any, as may from time to time be fixed by the action of a
majority of the stockholders.
ARTICLE THREE
OFFICERS
SECTION 3.1 Election; Qualification. The officers of the Corporation
shall be a Chairman of the Board, President, one or more Vice Presidents, a
Secretary and a Treasurer, each of whom shall be selected by the Board of
Directors. The Board of may elect a Controller, one or more Assistant
Secretaries, one or more Assistant Treasurers, one or more Assistant Controllers
and such other officers as it may from time to time determine. Two or more
offices may be held by the same person.
SECTION 3.2 Term of Office. Each officer shall hold office from the
time of his election and qualification to the time at which his successor is
elected and qualified, unless he shall die or resign or shall be removed
pursuant to Section 3.4 at any time sooner.
SECTION 3.3 Resignation. Any officer of the Corporation may resign
at any time by giving written notice of such resignation to the Board of
Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.4 Removal. Any officer may be removed at any time, with or
without cause, by the vote of a majority of the Whole Board.
SECTION 3.5 Vacancies. Any vacancy however caused in any office of
the Corporation may be filled by the Board of Directors.
SECTION 3.6 Compensation. The compensation of each officer shall be
such as the Board of Directors may from time to time determine.
SECTION 3.7 Chairman of the Board. The Chairman of the Board shall
be the chairman of all meetings of the Board of Directors.
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<PAGE> 8
SECTION 3.8 President. The President shall be chief executive
officer of the Corporation and shall have general charge of the business and
affairs of the Corporation, subject however to the right of the Board of
Directors to confer specified powers on officers and subject generally to the
direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.9 Vice President. Each Vice President shall have such
powers and duties as generally pertain to the office of Vice President and as
the Board of Directors or the President may from time to time prescribe. During
the absence of the President or his inability to act, the Vice President, or if
there shall be more than one Vice President, then that one designated by the
Board of Directors, shall exercise the powers and shall perform the duties of
the President, subject to the direction of the Board of Directors and the
Executive Committee, if any.
SECTION 3.10 Secretary. The Secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors. He shall be custodian of
the corporate seal and shall affix it or cause it to be affixed to such
instruments as require such seal and attest the same and shall exercise the
powers and shall perform the duties incident to the office of Secretary, subject
to the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.11 Other Officers. Each other officer of the Corporation
shall exercise the powers and shall perform the duties incident to his office,
subject to the direction of the Board of Directors and the Executive Committee,
if any.
ARTICLE FOUR
CAPITAL STOCK
SECTION 4.1 Stock Certificates. The interest of each holder of stock
of the Corporation shall be evidenced by a certificate or certificates in such
form as the Board of Directors may from time to time prescribe. Each certificate
shall be signed by or in the name of the Corporation by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Any or all the signatures appearing on such certificate or
certificates may be a facsimile. If 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.
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<PAGE> 9
SECTION 4.2 Transfer of Stock. Shares of stock shall be transferable
on the books of the Corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe.
SECTION 4.3 Holders of Record. Prior to due presentment for
registration of transfer the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all rights and powers of a
complete owner thereof, notwithstanding notice to the contrary.
SECTION 4.4 Lost, Stolen, Destroyed or Mutilated Certificates. The
Corporation shall issue a new certificate of stock to replace a certificate
theretofore issued by it alleged to have been lost, destroyed or wrongfully
taken, if the owner or his legal representative (i) requests replacement, before
the Corporation has notice that the stock certificate has been acquired by a
bona fide purchaser; (ii) files with the Corporation a bond sufficient to
indemnify the Corporation against any loss or destruction of any such stock
certificate or the issuance of any such new stock certificate; and (iii)
satisfies such other terms and conditions as the Board of Directors may from
time to time prescribe.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.1 Indemnity.
(a) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer or employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, 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 hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) and in the manner provided in the Certificate of
Incorporation of the
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<PAGE> 10
Corporation and as otherwise permitted by the Delaware General Corporation Law.
SECTION 5.2 Waiver of Notice. Whenever notice is required by the
Certificate of incorporation, the By-Laws or any provision of the Delaware
General Corporation Law, a written waiver thereof, signed by the person entitled
to notice, whether before or after the time required for such notice, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business 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, directors or members of a
committee of directors need be specified in any written waiver or notice.
SECTION 5.3 Fiscal Year. The fiscal year of the Corporation shall
start on such date as the Board of Directors shall from time to time prescribe.
SECTION 5.4 Corporate Seal. The corporate seal shall be in such form
as the Board of Directors may from time to time prescribe, and the same may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE SIX
AMENDMENT OF BY-LAWS
SECTION 6.1 Amendment. The By-Laws may be altered, amended or
repealed by the stockholders or by the Board of Directors by a majority vote.
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<PAGE> 1
Exhibit 3.120
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED LIABILITY COMPANY OF "CHANCELLOR MEDIA RADIO LICENSES, LLC", FILED IN
THIS OFFICE ON THE FOURTH DAY OF AUGUST, A.D. 1998, AT 2:30 O'CLOCK P.M.
[Secretary of State Seal]
/s/ Edward J. Freel
------------------------------------------
Edward J. Freel, Secretary of State
2929129 8100 AUTHENTICATION: 9233792
DATE: 08-04-98
981304087
<PAGE> 2
CERTIFICATE OF FORMATION
OF
CHANCELLOR MEDIA RADIO LICENSES, LLC
The undersigned, an authorized natural person, for the purpose of
forming a limited liability company, under the provisions and subject to the
requirements of the State of Delaware (particularly Chapter 18, Title 6 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "Delaware Limited Liability Company
Act"), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called
the "limited liability company") is:
CHANCELLOR MEDIA RADIO LICENSES, LLC
SECOND: The address of the registered office and the name and the
address of the registered agent of the limited liability company required to be
maintained by Section 18-104 of the Delaware Limited Liability Company Act is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
Executed on August 4, 1998
/s/ Jane C. Serena
-------------------------
Jane C. Serena
Authorized Person
<PAGE> 3
LIMITED LIABILITY COMPANY AGREEMENT
OF
CHANCELLOR MEDIA RADIO LICENSES, LLC
A Delaware Limited Liability Company
<PAGE> 4
LIMITED LIABILITY COMPANY AGREEMENT
OF
CHANCELLOR MEDIA RADIO LICENSES, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of
CHANCELLOR MEDIA RADIO LICENSES, LLC (the "Company") is effective as of August
4, 1998.
1. Formation of Limited Liability Company. Chancellor Media
Corporation of Illinois (the "Member") hereby forms the Company as a limited
liability company pursuant to the provisions of the Delaware Limited Liability
Company Act, 6 Del. C Section 18-101, et seq., as it may be amended from
time to time, and any successor to such statute (the "Act"). The rights and
obligations of the Member and the administration and termination of the Company
shall be governed by the Agreement and the Act. The Agreement shall be
considered the "Limited Liability Company Agreement" of the Company within the
meaning of Section 18-101(7) of the Act. To the extent this Agreement is
inconsistent in any respect with the Act, this Agreement shall control.
2. Members. Chancellor Media Corporation of Illinois is the sole
member of the Company.
3. Purpose. The purpose of the Company is to engage in any and
all other lawful businesses or activities in which a limited liability company
may be engaged under applicable law (including, without limitation, the Act).
4. Name. The name of the Company shall be "CHANCELLOR MEDIA RADIO
LICENSES, LLC".
5. Registered Agent and Principal Office. The registered office
and registered agent of the Company in the State of Delaware shall be as the
Member may designate from time to time. The Company may have such other offices
as the Member may designate from time to time. The mailing address of the
Company shall be c/o Chancellor Media Corporation, 300 Crescent Court, Suite
600, Dallas, Texas 75201.
6. Term of Company. The Company shall commence on the date a
Certificate of Formation (the "Certificate") first is properly filed with the
Secretary of State of the State of Delaware and shall continue in existence in
perpetuity unless its business and affairs are earlier wound up following
dissolution at such time as this Agreement may specify.
7. Management of Company. All decisions relating to the business,
affairs and properties of the Company shall be made by the Member. The Member
may appoint a Chairman, a President and one or more Executive Vice Presidents
and such other officers of the Company as the Member may deem necessary or
advisable to manage the day-to-day business affairs of the Company (the
"Officers"). To the extent delegated by the Member, the Officers shall have the
authority to act on behalf of, bind and execute and deliver documents in the
name
<PAGE> 5
and on behalf of the Company. No such delegation shall cause the Member to
cease to be a Member. The initial Officers of the Company are set forth on
Schedule A hereto.
8. Distributions. Each distribution of cash or other property by
the Company shall be made 100% to the Member. Each item of income, gain, loss,
deduction and credit of the Company shall be allocated 100% to the Member.
9. Capital Accounts. A capital account shall be maintained for
each Member in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv).
10. Dissolution and Winding Up. The Company shall dissolve and its
business and affairs shall be wound up upon the written consent of the Member.
11. Amendments. This Agreement may be amended or modified from
time to time only by a written instrument executed by the Member.
12. Governing Law. The validity and enforceability of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to otherwise governing principles of conflicts
of law.
Chancellor Media Corporation of Illinois
By: /s/ Andrea Hulcy
----------------------------------------
Name: Andrea Hulcy
Title: Vice President
<PAGE> 6
SCHEDULE A
OFFICERS
NAME TITLE
Jeffrey A. Marcus President and Chief Executive Officer
Matthew E. Devine Vice President, Chief Financial Officer
and Treasurer
James E. de Castro Vice President
Omar Choucair Vice President and Assistant Secretary
Andrea Hulcy Vice President and Assistant Secretary
Kenneth J. O'Keefe Vice President
Eric C. Neuman Vice President
<PAGE> 1
EXHIBIT 3.121
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"KTRH LICENSE LIMITED PARTNERSHIP", A DELAWARE LIMITED PARTNERSHIP,
WITH AND INTO "KLOL LICENSE LIMITED PARTNERSHIP" UNDER THE NAME OF "KLOL
LICENSE LIMITED PARTNERSHIP", A LIMITED PARTNERSHIP ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTY-FIRST DAY OF DECEMBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8845178
DATE: 01-02-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
KTRH LICENSE LIMITED PARTNERSHIP
INTO
KLOL LICENSE LIMITED PARTNERSHIP
The undersigned limited partnership, organized and existing under and
by virtue of the Revised Uniform Limited Partnership Act of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: The name and state of incorporation of each of the constituent
limited partnerships of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
KLOL License Limited Partnership Delaware
KTRH License Limited Partnership Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent limited partnerships in accordance with the requirements of
Section 17-211 of the State of Delaware Revised Uniform Limited Partnership Act.
THIRD: That the name of the surviving limited partnership is KLOL
License Limited Partnership.
FOURTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving limited partnership. The
address of the principal place of business of the surviving limited partnership
is 433 E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 3
FIFTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving limited partnership on request and without cost to
any partner of any constituent limited partnership.
Dated: December 31, 1997
KLOL LICENSE LIMITED PARTNERSHIP
By: /s/ Omar Choucair
---------------------------------------
Omar Choucair,
Vice President of its general
partner, Chancellor Media
Corporation of Houston
2
<PAGE> 4
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "KLOL LICENSE LIMITED PARTNERSHIP" FILED IN THIS OFFICE
ON THE TWENTY-EIGHTH DAY OF MAY, A.D. 1997, AT 4:30 O'CLOCK P.M.
[SEAL] /s/ William T. Quillen
--------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 8845178
DATE: 06-10-1991
<PAGE> 5
CERTIFICATE OF LIMITED PARTNERSHIP
OF
KLOL LICENSE LIMITED PARTNERSHIP
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17,
does hereby certify as follows:
I. The name of the limited partnership is KLOL License Limited
Partnership.
II. The address of the Partnership's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The name of the Partnership's registered agent for service of
process in the State of Delaware at such address is The Corporation Trust
Company.
III. The name and mailing address of the sole general partner is as
follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Evergreen Media Corporation 433 E. Las Colinas Blvd.
of Houston Suite 1130
Irving, TX 75039
</TABLE>
<PAGE> 6
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of KLOL License Limited Partnership as of this 24 day of
May, 1993.
EVERGREEN MEDIA CORPORATION
OF HOUSTON, a Delaware
corporation, Sole General Partner
By: /s/ Scott K. Ginsburg
---------------------------------
Scott K. Ginsburg, President
2
<PAGE> 7
State of Delaware
OFFICE OF THE SECRETARY OF STATE PAGE 1
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "KLOL LICENSE LIMITED PARTNERSHIP" FILED IN THIS OFFICE
ON THE TWENTY-EIGHTH DAY OF MAY, A.D. 1993, AT 4:30 O'CLOCK P.M.
* * * * * * * * * *
/s/ William T. Quillen
[SEAL] ---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3920387
DATE: 06/02 1993
<PAGE> 8
CERTIFICATE OF LIMITED PARTNERSHIP
OF
KLOL LICENSE LIMITED PARTNERSHIP
The undersigned, desiring to form a limited partnership pursuant to
the Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter
17, does hereby certify as follows:
I. The name of the limited partnership is KLOL License Limited
Partnership.
II. The address of the Partnership's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle. The name of the Partnership's registered agent for
service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the sole general partner is
as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Evergreen Media Corporation 433 E. Las Colinas Blvd.
of Houston Suite 1130
Irving, TX 75039
</TABLE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 05/28/1993
931525415 - 2338641
<PAGE> 9
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of KLOL License Limited Partnership as of this 24th day of
May, 1993.
EVERGREEN MEDIA CORPORATION
OF HOUSTON, a Delaware
corporation, Sole General Partner
By: /s/ Scott K. Ginsburg
----------------------------------
Scott K. Ginsburg, President
2
<PAGE> 10
KLOL LICENSE LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
AGREEMENT OF LIMITED PARTNERSHIP
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.
SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT
ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
<PAGE> 11
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership (the "Agreement") has been made
as of this 24 day of May, 1993 at the offices of Latham & Watkins, Washington
D.C., by and between Evergreen Media Corporation of Houston, a Delaware
corporation, whose address is 510 Lovett Boulevard, Houston, Texas 77006 (the
"General Partner") and Evergreen Media of Houston Limited Partnership, a
Delaware Limited Partnership, whose address is 510 Lovett Boulevard, Houston,
Texas 77006 (the "Limited Partner").
WHEREAS, the Limited Partner has acquired the right to acquire all of
the assets used or useful in the operation of KLOL(FM) radio station in
Houston, Texas; and
WHEREAS, the Partners now desires to form a Partnership to acquire and
hold the authorizations issued by the Federal Communications Commission
("FCC") necessary to operate those radio broadcast stations.
ARTICLE ONE
THE PARTNERSHIP
1.01. Name. The name of the partnership shall be KLOL LICENSE
LIMITED PARTNERSHIP, and such name shall be used at all times in connection
with Partnership business and affairs.
<PAGE> 12
1.02. Purpose. The purpose and business of the Partnership shall be
to acquire and own authorizations issued by the FCC necessary to operate
commercial radio stations in Houston, Texas, and in such other places as the
Partnership may determine (the "Stations"). Without limiting the generality of
the foregoing, the Partnership, through its General Partner, is specifically
authorized to acquire the FCC licenses used in the operation of KLOL(FM),
Houston, Texas.
1.03. Office and Agent for Service of Process. The principal office
and place of business of the Partnership shall be at 510 Lovett Boulevard,
Houston, Texas 77006. The agent for service of process shall be The Corporation
Trust Company with an address at 7209 Orange Street, Wilmington, Delaware
19801.
1.04. Certificate. Promptly after the execution of this Agreement,
the General Partner shall execute, acknowledge, and file or cause to be filed
with the Secretary of State of the State of Delaware a Certificate of Limited
Partnership.
1.05. Term. The Partnership shall continue until the occurrence of
an act or event specified in this Agreement or by law as one effecting
dissolution.
ARTICLE TWO
FINANCE
2.01. Partnership Shares. For purposes of this Agreement, the
Partners' respective Partnership Shares shall be as follows:
(a) General Partner:
Evergreen Media Corporation
of Houston 1%
(b) Limited Partner:
Evergreen Media of Houston
Limited Partnership 99%
2
<PAGE> 13
The Partnership Shares shall remain at the percentages specified above unless
changed by reappointment or assignment as provided in this Agreement or by
amendment to this Agreement.
The Partners shall acquire their shares in the partnership identified
in this Section 2.01 by making capital contributions as follows:
Evergreen Media Corporation
of Houston $ 1
Evergreen Media of Houston
Limited Partnership $99
2.02. Calls for Additional Capital. The General Partner may at any
time issue a call for additional capital contributions from the Partners. Such
contributions shall be made pro rata based upon the then-current Partnership
Shares. All capital contributions required to be made pursuant to this
subsection shall be remitted to the Partnership within fifteen (15) days
following notice from the General Partner of the capital call. The General
Partner may make capital calls for the purpose of repaying any indebtness of
the partnership incurred in "Station Transaction." A "Station Transaction" means
the purchase or sale by, and assignment to or from, the Partnership of
substantially all of the assets of a broadcast station licensed by the Federal
Communications Commission, or the transfer to or from the partnership of a
controlling interest in a person that is the licensee of a Station.
2.03. Capital Accounts. A capital account shall be established for
each Partner which shall reflect (a) all capital contributions made by such
Partner to the Partnership; (b) all items of Partnership income and gain
allocated to such Partner; (c) all distributions made to or on behalf of such
Partner; and (d) all items of Partnership cost, expense, loss, and deduction
allocated to such Partner. Each capital account shall be maintained in a manner
corresponding to the capital of the Partners as reported on the federal
3
<PAGE> 14
income tax returns of the Partnership. The respective capital accounts of the
Partners shall not bear interest. Each Partner hereby waives any right to
demand the return of a capital contribution.
2.04. Allocation of Profits and Losses. All net profits, net losses,
deductions, and credits shall be allocated to the Partners in accordance with
their respective Partnership Shares. The General Partner may make such
additional allocations as may be necessary to meet the requirements of Section
704 of the Internal Revenue Code of 1986 and the regulations promulgated
thereunder (the "Code").
2.05. Cash Distributions. Cash distributions during the term of the
Partnership shall be made at such times and in such amounts as the General
Partner shall determine in its discretion. Such distributions shall be made to
the Partners in accordance with their respective Partnership Shares.
2.06. Partnership Funds. All funds of the Partnership shall be
deposited in its name in such bank account or accounts, or invested in such
interest-bearing investments, as shall be determined by the General Partner in
its discretion. All withdrawals of funds shall be made by check or order signed
by an officer of the General Partner or by an agent or agents designated by the
General Partner from time to time. Partnership funds shall not be commingled
with those of any other person or entity.
2.07. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
2.08. Income Tax Elections. All elections required or permitted to
be made by the partnership under the Code shall be made by the General Partner
in such a manner that such elections, in its judgment, will be most
advantageous to the Partners. Each Partner will upon request supply the
information necessary to give effect to any such election.
4
<PAGE> 15
ARTICLE THREE
BOOKS AND RECORDS
3.01. Accounting. The General Partner shall keep proper and complete
books of account in which shall be entered fully and accurately all
transactions and other matters relative to the Partnership's business and as
are usually entered into books of account maintained by persons engaged in the
radio broadcasting business. The Partnership's books of account shall be kept
using a method of accounting selected by the General Partner and maintained as
required for federal income tax purposes.
3.02. Partnership Records. The Partnership's books and records shall
be kept at the Partnership's office where they shall be available for
reasonable inspection or examination by the Partners or their duly authorized
representatives during normal business hours.
ARTICLE FOUR
MANAGEMENT AND OPERATIONS
4.01. Management Generally. The General Partner shall have full and
exclusive power and authority to manage, control, administer and operate the
business and affairs of the Partnership, and to do or cause to be done any and
all acts deemed by the General Partner to be necessary or appropriate thereto,
and the scope of such power and authority shall encompass all matters in any
way connected with such business. Except as specifically provided in this
Agreement, the General Partner shall manage the Partnership. Notwithstanding
the foregoing, every contract, deed, mortgage, lease and other instrument
executed by the General Partner shall be conclusive evidence in favor of every
person or entity relying thereon or claiming thereunder that, at the time of
the delivery thereof, (a) the Partnership was in existence, and (b) the
execution and delivery thereof was duly authorized.
5
<PAGE> 16
Without limiting the generality of the forgoing, the General Partner (acting
through its duly authorized officers) is specifically to cause the Partnership
to enter into any agreement required under Senior Secured Credit Facilities
dated November 6, 1992 for Evergreen Media Corporation of Los Angeles from
Various Lending Institutions (the "Banks") Some of Which are also Acting as
Co-Agents (the "Co-Agents"), with Toronto Dominion (Texas), Inc. as Agent for
the Co-Agents and the Banks.
4.02. Expenses of General Partner. The General Partner shall be
entitled to charge the Partnership, and to be reimbursed by it, for any and all
reasonable costs and expenses incurred by the General Partner in connection
with the operation of the Partnership's business.
4.03. Limitations on Limited Partners. A Limited Partner shall not
participate in the management or control of the Partnership, engage in any
activity which creates the potential for control of the Partnership, transact
any business on behalf of the Partnership, or have any power to act for or bind
the Partnership.
4.04. Dealings Outside the Partnership. No Partner shall engage in
any conduct which would impair the Partnership's qualifications to be an FCC
licensee.
ARTICLE FIVE
LIABILITY OF PARTNERS
5.01. Liability of General Partner. The General Partner shall not be
liable in damages or otherwise to the Partnership or any Partner for any action
taken or failure to act on behalf of the Partnership within the scope of the
authority conferred on the General Partner by this Agreement unless such act or
omission was performed or omitted fraudulently. In no event shall the General
Partner be liable for any loss or damage to Partnership
6
<PAGE> 17
property caused by acts of a public enemy, natural disasters, or other causes
beyond the General Partner's control.
5.02. Liability of Limited Partners. No Limited Partner shall have
any personal liability, whether to the Partnership, to any of the Partners, or
to the creditors of the Partnership for the debts of the Partnership beyond the
amounts required to be contributed by it to the capital of the Partnership
pursuant to this Agreement.
ARTICLE SIX
ADDITION AND WITHDRAWAL OF PARTNERS
6.01. Addition of Partners. No additional partners may be admitted
to the Partnership without the consent of all the Partners. The addition of a
general partner shall be subject to any necessary prior consent of the FCC.
6.02. Withdrawal of Partners. The General Partner may not withdraw
from the Partnership or transfer its interest in the Partnership without the
prior consent of the Partners.
6.03 Transfer of Partnership Interests. No Partnership Interest may
be transferred without the unanimous consent of all the Partners.
ARTICLE SEVEN
DISSOLUTION AND WINDING-UP
7.01. Events of Dissolution. The Partnership shall be dissolved:
(a) If the General Partner withdraws from the Partnership or there
otherwise ceases to be a General Partner;
(b) Upon the death, insanity, bankruptcy, retirement, resignation,
or withdrawal of the General Partner; provided, however, that all remaining
Partners may agree to continue the Partnership upon a unanimous vote;
7
<PAGE> 18
(c) Upon the mutual consent of all of the Partners;
(d) Upon the entry of a decree of judicial dissolution; or
(e) In any event, at 11:59 p.m. on December 31, 2020.
The Partnership shall continue to exist following December 31, 2020, or
following the earlier happening of any of the foregoing events, solely for the
purpose of winding up its affairs.
7.02. Final Accounting. Following the dissolution of the
Partnership, a proper accounting shall be made of the accounts of the
Partnership, of each Partner and of the Partnership's assets, liabilities and
operations from the date of the last previous accounting to the date of such
dissolution.
7.03. Liquidating Trustee. Upon dissolution of the Partnership, the
General Partner (or, in the event of dissolution under Section 7.01(a), an
agent appointed by the remaining Partners) shall file a certificate of
dissolution and shall proceed diligently to wind up the affairs of the
Partnership and distribute its assets as liquidating trustee. During the
interim, the liquidating trustee shall continue to exploit the rights and
properties of the Partnership consistent with the liquidation thereof and each
Partner shall continue to share profits and losses as provided in this
Agreement. In connection with winding up the affairs of the Partnership, the
liquidating trustee may sell all properties owned by the Partnership at public
or private sale upon such terms and conditions as the liquidating trustee deems
advisable.
7.04. Liquidation and Distribution. The net proceeds received by the
liquidating trustee upon the sale of the properties of the Partnership, if any,
and any remaining assets of the Partnership shall be applied and distributed in
cash or in kind in the following order of priority:
8
<PAGE> 19
(a) To the payment of all debts, obligations, and liabilities of
the Partnership and the expenses of liquidation;
(b) To the establishment of any reserves which the liquidating
trustee may deem necessary for any contingent or unforeseen obligations or
liabilities of the Partnership, including, without limitation, payment of such
reserves over to a person, as escrow agent, to be held by such person for the
purpose of disbursing such reserves, and, upon the expiration of such period as
determined by the liquidating trustee to distribute the balance as provided in
this subsection;
(c) To the Partners in an amount sufficient to pay the remaining
credit balances, if any, of their respective capital accounts; provided,
however, that any Partner having a negative balance in his or its capital
account shall, prior to receiving any assets of the Partnership pursuant to
this subsection elect (i) to forego distributions of assets having a fair
market value equal to the negative balance; or (ii) to contribute cash in an
amount equal to such negative balance; or (iii) some combination of (i) and
(ii).
(d) To the Partners in accordance with their respective
Partnership Shares.
7.05. Termination. Upon completion of the liquidation of the
Partnership and the distribution of all funds of the Partnership, the
liquidating trustee shall execute and record a certificate of cancellation and
the Partnership shall terminate.
ARTICLE EIGHT
MISCELLANEOUS
8.01. Notices. Any and all notices permitted or required to be given
under this Agreement shall be in writing, signed by the Partner giving such
notice, and shall be delivered personally, or sent by registered or certified
mail, to the other Partners, at their address set forth in the preamble, or at
such other address as may be supplied in writing.
9
<PAGE> 20
The date of personal delivery or the date of mailing, as the case may be, shall
be the date of such notice.
8.02. Successors and Assigns. This Agreement, and each and every
provision hereof, shall be binding upon and shall inure to the benefit of the
Partners, their respective successors and assigns, and each Partner agrees, on
behalf of itself, its successors and assigns, to execute any instruments which
may be necessary and appropriate to carry out and execute the purpose and
intentions of this Agreement, and hereby authorizes and directs its successors
and assigns to execute any and all such instruments. Each and every
successor-in-interest to any Partner, whether such successor acquired such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this
Agreement.
8.03. Amendment. No change, modification or amendment of this
Agreement shall be valid or binding upon the Partners unless all Partners
affirmatively vote in favor of such change, modification or amendment.
8.04. No Waiver. The failure of any Partner to insist upon strict
performance of a covenant hereunder or of any obligation hereunder shall not be
a waiver of such Partner's right to demand strict compliance therewith in the
future.
8.05. Integration. This Agreement constitutes the full and complete
agreement of the Partners.
8.06. Captions. Titles or captions of articles and sections
contained in this Agreement are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision hereof.
10
<PAGE> 21
8.07. Number and Gender. Whenever required by the context, the
singular number shall include the plural and the masculine or neuter gender
shall include all genders.
8.08. Counterparts. This Agreement may be executed in multiple
copies, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
8.09. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GENERAL PARTNER:
EVERGREEN MEDIA CORPORATION OF
HOUSTON
By: /s/ Scott K. Ginsburg
-------------------------------------
Scott K. Ginsburg, President
LIMITED PARTNER:
EVERGREEN MEDIA OF HOUSTON
LIMITED PARTNERSHIP
By: Evergreen Media Corporation of
Houston, it authorized General Partner
By: /s/ Scott K. Ginsburg
--------------------------------------
Scott K. Ginsburg, President
11
<PAGE> 1
EXHIBIT 3.122
PAGE 1
State of Delaware
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"WASH LICENSE LIMITED PARTNERSHIP", A DELAWARE LIMITED PARTNERSHIP,
WITH AND INTO "WTOP LICENSE LIMITED PARTNERSHIP" UNDER THE NAME OF
"WTOP LICENSE LIMITED PARTNERSHIP", A LIMITED PARTNERSHIP ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE THIRTY-FIRST DAY OF DECEMBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8845180
DATE: 01-02-98
<PAGE> 2
CERTIFICATE OF MERGER
OF
WASH LICENSE LIMITED PARTNERSHIP
INTO
WTOP LICENSE LIMITED PARTNERSHIP
The undersigned limited partnership, organized and existing
under and by virtue of the Revised Uniform Limited Partnership Act of the State
of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent limited partnerships of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
WTOP License Limited Partnership Delaware
WASH License Limited Partnership Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties
to the merger has been approved, adopted, certified, executed and acknowledged
by each of the constituent limited partnerships in accordance with the
requirements of Section 17-211 of the State of Delaware Revised Uniform Limited
Partnership Act.
THIRD: That the name of the surviving limited partnership is
WTOP License Limited Partnership.
FOURTH: That the executed Plan and Agreement of Merger is on
file at the principal place of business of the surviving limited partnership.
The address of the principal place of business of the surviving limited
partnership is 433 E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 3
FIFTH: That a copy of the Plan and Agreement of Merger will
be furnished by the surviving limited partnership on request and without cost
to any partner of any constituent limited partnership.
Dated: December 31, 1997
WTOP LICENSE LIMITED
PARTNERSHIP
By: /s/ Omar Choucair
-----------------------------------
Omar Choucair,
Vice President of its general
partner, Chancellor Media
Corporation of Washington, D.C.
2
<PAGE> 4
CERTIFICATE OF MERGER
OF
WASH LICENSE LIMITED PARTNERSHIP
INTO
WTOP LICENSE LIMITED PARTNERSHIP
The undersigned limited partnership, organized and existing under and
by virtue of the Revised Uniform Limited Partnership Act of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent limited partnerships of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
WTOP License Limited Partnership Delaware
WASH License Limited Partnership Delaware
</TABLE>
SECOND: That a Plan and Agreement of Merger among the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent limited partnerships in accordance with the requirements of
Section 17-211 of the State of Delaware Revised Uniform Limited Partnership Act.
THIRD: That the name of the surviving limited partnership is WTOP
License Limited Partnership.
FOURTH: That the executed Plan and Agreement of Merger is on file at
the principal place of business of the surviving limited partnership. The
address of the principal place of business of the surviving limited partnership
is 433 E. Las Colinas Blvd., Suite 1130, Irving, Texas 75039.
<PAGE> 5
FIFTH: That a copy of the Plan and Agreement of Merger will be
furnished by the surviving limited partnership on request and without cost to
any partner of any constituent limited partnership.
Dated: December 31, 1997
WTOP LICENSE LIMITED
PARTNERSHIP
By: /s/ Omar Choucair
-------------------------------
Omar Choucair,
Vice President of its general
partner, Chancellor Media
Corporation of Washington, D.C.
2
<PAGE> 6
State of Delaware
PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED AS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "WTOP LICENSE LIMITED PARTNERSHIP" FILED IN THIS OFFICE
ON THE THIRTEENTH DAY OF JULY, A.D. 1993, AT 1 O'CLOCK P.M.
/s/ William T. Quillen
[SEAL] -----------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *3979071
DATE: 07/16/1993
51
<PAGE> 7
CERTIFICATE OF LIMITED PARTNERSHIP
OF
WTOP LICENSE LIMITED PARTNERSHIP
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17,
does hereby certify as follows:
I. The name of the limited partnership is WTOP License Limited
Partnership.
II. The address of the Partnership's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The name of the Partnership's registered agent for service of
process in the State of Delaware at such address is The Corporation Trust
Company.
III. The name and mailing address of the sole general partner is as
follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Evergreen Media Corporation 433 E. Las Colinas Blvd.
of Washington, D.C. Suite 1130
Irving, TX 75039
</TABLE>
<PAGE> 8
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of WTOP License Limited Partnership as of this 30th day of
June, 1993.
EVERGREEN MEDIA CORPORATION
OF WASHINGTON, D.C., a Delaware
corporation, Sole General Partner
By: /s/ Scott K. Ginsburg
-----------------------------------
Scott K. Ginsburg, President
2
<PAGE> 9
CONSENT
WTOP License Corp., a Delaware corporation, hereby consents to the use of
the name, "WTOP LICENSE LIMITED PARTNERSHIP", in Delaware by its affiliate,
WTOP License Limited Partnership.
Date: June 30, 1993
WTOP LICENSE CORP.,
a Delaware corporation
By: /s/ Matthew E. Devine
-----------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 10
CONSENT
WTOP License Corp., a Delaware corporation, hereby consents to the use of
the name, "WTOP LICENSE LIMITED PARTNERSHIP", in Delaware by its affiliate,
WTOP License Limited Partnership.
Date: June 30, 1993
WTOP LICENSE CORP.,
a Delaware corporation
By: /s/ Matthew E. Devine
---------------------------------
Matthew E. Devine
Assistant Secretary
<PAGE> 11
=======================================
WTOP LICENSE LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
AGREEMENT OF LIMITED PARTNERSHIP
=======================================
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.
SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT
ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
<PAGE> 12
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership (the "Agreement") has been made
as of this 13th day of July, 1993 by and between Evergreen Media Corporation of
Washington, D.C., a Delaware corporation (the "General Partner") and Evergreen
Media Corporation of St. Louis, a Delaware Corporation (the "Limited Partner").
WHEREAS, the General Partner holds all of the assets used or useful in
the operation of radio station WTOP(AM) in Washington, D.C.; and
WHEREAS, the Partners now desire to form a Partnership to hold the
authorizations issued by the Federal Communications Commission ("FCC")
necessary to operate that radio broadcast station.
ARTICLE ONE
THE PARTNERSHIP
1.01. Name. The name of the partnership shall be WTOP LICENSE LIMITED
PARTNERSHIP, and such name shall be used at all times in connection with
Partnership business and affairs.
1.02. Purpose. The purpose and business of the Partnership shall be to
acquire and own authorizations issued by the FCC necessary to operate
commercial radio stations in Washington, D.C., and in such other places as the
Partnership may determine (the "Stations"). Without limiting the generality of
the foregoing, the Partnership, through its General Partner, is specifically
authorized to acquire the FCC authorizations needed in the operation of
WTOP(AM), Washington, D.C.
<PAGE> 13
1.03. Office and Agent for Service of Process. The principal office
and place of business of the Partnership shall be 3400 Idaho Ave.. N.W.,
Washington, D.C. The agent for service of process shall be The Corporation
Trust Company with an address at 7209 Orange Street, Wilmington, Delaware
19801.
1.04. Certificate. Promptly after the execution of this Agreement, the
General Partner shall execute, acknowledge, and file or cause to be filed with
the Secretary of State of the State of Delaware a Certificate of Limited
Partnership.
1.05. Term. The Partnership shall continue until the occurrence of an
act or event specified in this Agreement or by law as one effecting
dissolution.
ARTICLE TWO
FINANCE
2.01. Partnership Shares. For purposes of this Agreement, the
Partners' respective Partnership Shares shall be as follows:
(a) General Partner:
Evergreen Media Corporation
of Washington, D.C. 99%
(b) Limited Partner:
Evergreen Media Corporation
of St. Louis 1%
The Partnership Shares shall remain at the percentages specified above unless
changed by reappointment or assignment as provided in this Agreement or by
Agreement.
2
<PAGE> 14
The Partners shall acquire their shares in the partnership identified
in this Section 2.01 by making capital contributions as follows:
Evergreen Media Corporation $1,000
of St. Louis
Evergreen Media Corporation Certain FCC
of Washington, D.C. Authorizations
2.02. Calls for Additional Capital. The General Partner may at any
time issue a call for additional capital contributions from the Partners. Such
contributions shall be made pro rata based upon the then-current Partnership
Shares. All capital contributions required to be made pursuant to this
subsection shall be remitted to the Partnership within fifteen (15) days
following notice from the General Partner of the capital call. The General
Partner may make capital calls for the purpose of repaying any indebtedness of
the partnership incurred in a "Station Transaction." A "Station Transaction"
means the purchase or sale by, and assignment to or from, the Partnership of
substantially all of the assets of a broadcast station licensed by the Federal
Communications Commission, or the transfer to or from the partnership of a
controlling interest in a person that is the licensee of a Station.
2.03. Capital Accounts. A capital account shall be established for
each Partner which shall reflect (a) all capital contributions made by such
Partner to the Partnership; (b) all items of Partnership income and gain
allocated to such Partner; (c) all distributions made to or on behalf of such
Partner; and (d) all items of Partnership cost, expense, loss, and deduction
allocated to such Partner. Each capital account shall be maintained in a manner
corresponding to the capital of the Partners as reported on the federal income
tax returns of the Partnership. The respective capital accounts of the Partners
shall
3
<PAGE> 15
not bear interest. Each Partner hereby waives any right to demand the return of
a capital contribution.
2.04. Allocation of Profits and Losses. All net profits, net losses,
deductions and credits shall be allocated to the Partners in accordance with
their respective Partnership Shares. The General Partner may make such
additional allocations as may be necessary to meet the requirements of Section
704 of the Internal Revenue Code of 1986 and the regulations promulgated
thereunder (the "Code").
2.05. Cash Distributions. Cash distributions during the term of the
Partnership shall be made at such times and in such amounts as the General
Partner shall determine in its discretion. Such distributions shall be made to
the Partners in accordance with their respective Partnership Shares.
2.06. Partnership Funds. All funds of the Partnership shall be
deposited in it name in such bank account or accounts, or invested in such
interest-bearing investments, as shall be determined by the General Partner in
its discretion. All withdrawals of funds shall be made by check or order signed
by an officer of the General Partner or by an agent or agents designated by the
General Partner from time to time. Partnership funds shall not be commingled
with those of any other person or entity.
2.07. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
2.08. Income Tax Elections. All elections required or permitted to be
made by the Partnership under the Code shall be made by the General Partner in
such a manner that such elections, in its judgment, will be most advantageous
to the Partners. Each Partner will upon request supply the information
necessary to give effect to any such election.
4
<PAGE> 16
ARTICLE THREE
BOOKS AND RECORDS
3.01. Accounting. The General Partner shall keep proper and complete
books of account in which shall be entered fully and accurately all
transactions and other matters relative to the Partnership's business and as
are usually entered into books of account maintained by persons engaged in the
radio broadcasting business. The Partnership's books of account shall be kept
using a method of accounting selected by the General Partner and maintained as
required for federal income tax purposes.
3.02. Partnership Records. The Partnership's books and records shall
be kept at the Partnership's office where they shall be available for
reasonable inspection or examination by the Partners or their duly authorized
representatives during normal business hours.
ARTICLE FOUR
MANAGEMENT AND OPERATIONS
4.01. Management Generally. The General Partner shall have full and
exclusive power and authority to manage, control, administer and operate the
business and affairs of the Partnership, and to do or cause to be done any and
all acts deemed by the General Partner to be necessary or appropriate thereto,
and the scope of such power and authority shall encompass all matters in any
way connected with such business. Except as specifically provided in this
Agreement, the General Partner shall manage the Partnership. Notwithstanding
the foregoing, every contract, deed, mortgage, lease and other instrument
executed by the General Partner shall be conclusive evidence in favor of every
person or entity relying thereon or claiming thereunder that, at the time of
the delivery thereof, (a) the Partnership was in existence, and (b) the
execution and delivery thereof was duly authorized.
5
<PAGE> 17
Without limiting the generality of the foregoing, the General Partner (acting
through its duly authorized officers) is specifically to cause the Partnership
to enter into any agreement required under Senior Secured Credit Facilities
dated November 6, 1992 for Evergreen Media Corporation of Los Angeles from
Various Lending Institutions (the "Banks") Some of Which are also Acting as
Co-Agents (the "Co-Agents"), with Toronto Dominion (Texas), Inc. as Agent for
the Co-Agents and the Banks.
4.02. Expenses of General Partner. The General Partner shall be
entitled to charge the Partnership, and to be reimbursed by it, for any and all
reasonable costs and expenses incurred by the General Partner in connection
with the operation of the Partnership's business.
4.03. Limitations on Limited Partners. A Limited Partner shall not
participate in the management or control of the Partnership, engage in any
activity which creates the potential for control of the Partnership, transact
any business on behalf of the Partnership, or have any power to act for or bind
the Partnership.
4.04. Dealings Outside the Partnership. No Partner shall engage in any
conduct which would impair the Partnership's qualifications to be an FCC
licensee.
ARTICLE FIVE
LIABILITY OF PARTNERS
5.01. Liability of General Partner. The General Partner shall not be
liable in damages or otherwise to the Partnership or any Partner for any action
taken or failure to act on behalf of the Partnership within the scope of the
authority conferred on the General Partner by this Agreement unless such act or
omission was performed or omitted fraudulently. In no event shall the General
Partner be liable for any loss or damage to Partnership
6
<PAGE> 18
property caused by acts of a public enemy, natural disasters, or other causes
beyond the General Partner's control.
5.02. Liability of Limited Partners. No Limited Partner shall have any
personal liability, whether to the Partnership, to any of the Partners, or to
the creditors of the Partnership for the debts of the Partnership beyond the
amounts required to be contributed by it to the capital of the Partnership
pursuant to this Agreement.
ARTICLE SIX
ADDITION AND WITHDRAWAL OF PARTNERS
6.01. Addition of Partners. No additional partners may be admitted to
the Partnership without the consent of all the Partners. The addition of a
general partner shall be subject to any necessary prior consent of the FCC.
6.02. Withdrawal of Partners. The General Partner may not withdraw
from the Partnership or transfer its interest in the Partnership without the
prior consent of the Partners.
6.03 Transfer of Partnership Interests. No Partnership Interest may be
transferred without the unanimous consent of all the Partners.
ARTICLE SEVEN
DISSOLUTION AND WINDING-UP
7.01. Events of Dissolution. The Partnership shall be dissolved:
(a) If the General Partner withdraws from the Partnership or there
otherwise ceases to be a General Partner;
(b) Upon the death, insanity, bankruptcy retirement, resignation, or
withdrawal of the General Partner; Provided, however, that all remaining
Partners may agree to continue the Partnership upon a unanimous vote;
7
<PAGE> 19
(c) Upon the mutual consent of all of the Partners;
(d) Upon the entry of a decree of judicial dissolution; or
(e) In any event, at 11:59 p.m. on December 31, 2020.
The Partnership shall continue to exist following December 31, 2020, or
following the earlier happening of any of the foregoing events, solely for the
purpose of winding up its affairs.
7.02. Final Accounting. Following the dissolution of the Partnership,
a proper accounting shall be made of the accounts of the Partnership, of each
Partner and of the Partnership's assets, liabilities and operations from the
date of the last previous accounting to the date of such dissolution.
7.03. Liquidating Trustee. Upon dissolution of the Partnership, the
General Partner (or, in the event of dissolution under Section 7.01(a), an
agent appointed by the remaining Partners) shall file a certificate of
dissolution and shall proceed diligently to wind up the affairs of the
Partnership and distribute its assets as liquidating trustee. During the
interim, the liquidating trustee shall continue to exploit the rights and
properties of the Partnership consistent with the liquidation thereof and each
Partner shall continue to share profits and losses as provided in this
Agreement. In connection with winding up the affairs of the Partnership, the
liquidating trustee may sell all properties owned by the Partnership at public
or private sale upon such terms and conditions as the liquidating trustee deems
advisable.
7.04. Liquidation and Distribution. The net proceeds received by the
liquidating trustee upon the sale of the properties of the Partnership, if any,
and any remaining assets of the Partnership shall be applied and distributed in
cash or in kind in the following order of priority:
8
<PAGE> 20
(a) To the payment of all debts, obligations, and liabilities of the
Partnership and the expenses of liquidation;
(b) To the establishment of any reserves which the liquidating trustee
may deem necessary for any contingent or unforeseen obligations or liabilities
of the Partnership, including, without limitation, payment of such reserves
over to a person, as escrow agent, to be held by such person for the purpose of
disbursing such reserves, and, upon the expiration of such period as determined
by the liquidating trustee to distribute the balance as provided in this
subsection;
(c) To the Partners in an amount sufficient to pay the remaining
credit balances, if any, of their respective capital accounts; provided,
however, that any Partner having a negative balance in his or its capital
account shall, prior to receiving any assets of the Partnership pursuant to
this subsection elect (i) to forego distributions of assets having a fair
market value equal to the negative balance; or (ii) to contribute cash in an
amount equal to such negative balance; or (iii) some combination of (i) and
(ii).
(d) To the Partners in accordance with their respective Partnership
Shares.
7.05. Termination. Upon completion of the liquidation of the
Partnership and the distribution of all funds of the Partnership, the
liquidating trustee shall execute and record a certificate of cancellation and
the Partnership shall terminate.
ARTICLE EIGHT
MISCELLANEOUS
8.01. Notices. Any and all notices permitted or required to be given
under this Agreement shall be in writing, signed by the Partner giving such
notice, and shall be delivered personally, or sent by registered or certified
mail, to the other Partners, at their address set forth in the preamble, or at
such other address as may be supplied in writing.
9
<PAGE> 21
The date of personal delivery or the date of mailing, as the case may be, shall
be the date of such notice.
8.02. Successors and Assigns. This Agreement, and each and every
provision hereof, shall be binding upon and shall inure to the benefit of the
Partners, their respective successors and assigns, and each Partner agrees, on
behalf of itself, its successors and assigns, to execute any instruments which
may be necessary and appropriate to carry out and execute the purpose and
intentions of this Agreement, and hereby authorizes and directs its successors
and assigns to execute any and all such instruments. Each and every
successor-in-interest to any Partner, whether such successor acquired such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this
Agreement.
8.03. Amendment. No change, modification or amendment of this
Agreement shall be valid or binding upon the Partners unless all Partners
affirmatively vote in favor of such change, modification or amendment.
8.04. No Waiver. The failure of any Partner to insist upon strict
performance of a covenant hereunder or of any obligation hereunder shall not be
a waiver of such Partner's right to demand strict compliance therewith in the
future.
8.05. Integration. This Agreement constitutes the full and complete
agreement of the Partners.
8.06. Captions. Titles or captions of articles and sections contained
in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
10
<PAGE> 22
8.07. Number and Gender. Whenever required by the context, the
singular number shall include the plural and the masculine or neuter gender
shall include all genders.
8.08. Counterparts. This Agreement may be executed in multiple copies,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
8.09. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GENERAL PARTNER:
EVERGREEN MEDIA CORPORATION
OF WASHINGTON, D.C.
By:/s/ Matthew E. Devine
--------------------------------------
Matthew E. Devine, Assistant Secretary
LIMITED PARTNER:
EVERGREEN MEDIA CORPORATION
OF ST. LOUIS
By:/s/ Matthew E. Devine
--------------------------------------
Matthew E. Devine, Assistant Secretary
11
<PAGE> 1
EXHIBIT 3.123
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF LIMITED
LIABILITY COMPANY OF "RADIO 100 L.L.C.", FILED IN THIS OFFICE ON THE NINTH DAY
OF JANUARY, A.D. 1997, AT 1 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386168
DATE: 11-04-98
<PAGE> 2
CERTIFICATE OF FORMATION
OF
RADIO 100 L.L.C.
1. NAME
The name of the limited liability company is Radio 100 L.L.C. (the "LLC").
2. REGISTERED OFFICE AND AGENT
The address of the LLC's registered office in the State of Delaware is 1209
Orange Street, Wilmington, Delaware 19801, County of New Castle. The name
of the LLC's registered agent at such address is The Corporation Trust
Company.
3. DISSOLUTION
The latest date on which the LLC is to dissolve is December 31, 2050.
4. AUTHORIZED PERSON
The name and address of the authorized person is Melody G. Woodward, Hogan
& Hartson, L.L.P., 8300 Greensboro Drive, McLean, Virginia 22102. The
powers of the authorized person shall terminate upon the filing of this
Certificate of Formation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of Radio 100 L.L.C. this 9th day of January, 1997.
By: /s/ MELODY G. WOODWARD
-------------------------
Melody G. Woodward
<PAGE> 3
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
RESTORATION OF "RADIO 100 L.L.C.", FILED IN THIS OFFICE ON THE THIRTEENTH DAY
OF OCTOBER, A.D. 1998, AT 12:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386167
DATE: 11-04-98
<PAGE> 4
CERTIFICATE TO RESTORE TO GOOD STANDING
A DELAWARE LIMITED LIABILITY COMPANY
PURSUANT TO SECTION 18-1107(I)
1. Name of Limited Liability Company: Radio 100 L.L.C.
2. Date of original filing with the Secretary of State of the State of
Delaware; on or about January 9, 1997.
I, Omar Choucair, an authorized person of the above named limited
liability company do hereby certify that this limited liability company is
paying all annual taxes, penalties and interest due to the State of Delaware.
I do hereby request this limited liability company to be restored to Good
Standing.
By: /s/ OMAR CHOUCAIR
---------------------------------
Omar Choucair
Vice President
<PAGE> 1
EXHIBIT 4.41
================================================================================
INDENTURE
DATED AS OF SEPTEMBER 30, 1998
AMONG
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, AS ISSUER
THE GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
$750,000,000
9% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2008
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- --------------------------------------------------------------------------------------------------------
<S> <C>
310(a) (1)..........................................................................................7.10
(a) (2).............................................................................................7.10
(a) (3).............................................................................................N.A.
(a) (4).............................................................................................N.A.
(a) (5).......................................................................................7.08; 7.10
(b)....................................................................................7.08; 7.10; 11.02
(c).................................................................................................N.A.
311(a)..............................................................................................7.11
(b).................................................................................................7.11
(c).................................................................................................N.A.
312(a)..............................................................................................2.05
(b)................................................................................................11.03
(c)................................................................................................11.03
313(a)..............................................................................................7.06
(b) (1).............................................................................................N.A.
(b) (2).............................................................................................7.06
(c)..........................................................................................7.06; 11.02
(d).................................................................................................7.06
314(a).................................................................................4.07; 4.09; 11.02
(b).................................................................................................N.A.
(c)(1).............................................................................................11.04
(c)(2).............................................................................................11.04
(c)(3)..............................................................................................N.A.
(d).................................................................................................N.A.
(e)................................................................................................12.05
(f)..................................................................................................N.A
315(a)...........................................................................................7.01(b)
(b)..........................................................................................7.05; 11.02
(c)..............................................................................................7.01(a)
(d)..............................................................................................7.01(c)
(e).................................................................................................6.11
316(a) (last sentence)..............................................................................2.09
(a)(1)(A)...........................................................................................6.05
(a)(1)(B)...........................................................................................6.04
(a)(2)..............................................................................................N.A.
(b).................................................................................................6.07
317(a) (1)..........................................................................................6.08
(a)(2)..............................................................................................6.09
(b).................................................................................................2.04
318(a).............................................................................................11.01
(c)................................................................................................11.01
</TABLE>
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.....................................................1
Section 1.01. Definitions..................................................................1
Section 1.02. Incorporation by Reference of TIA...........................................17
Section 1.03. Rules of Construction.......................................................18
ARTICLE 2. THE SECURITIES................................................................................18
Section 2.01. Form and Dating.............................................................18
Section 2.02. Execution and Authentication................................................19
Section 2.03. Registrar and Paying Agent..................................................20
Section 2.04. Paying Agent to Hold Money in Trust.........................................20
Section 2.05. Holder Lists................................................................20
Section 2.06. Transfer and Exchange.......................................................21
Section 2.07. Replacement Securities......................................................32
Section 2.08. Outstanding Securities......................................................33
Section 2.09. Treasury Securities.........................................................33
Section 2.10. Temporary Securities........................................................33
Section 2.11. Cancellation................................................................33
Section 2.12. Defaulted Interest..........................................................34
Section 2.13. CUSIP Number................................................................34
Section 2.14. Deposit of Moneys...........................................................34
ARTICLE 3. REDEMPTION....................................................................................34
Section 3.01. Notices to Trustee..........................................................34
Section 3.02. Selection of Securities To Be Redeemed......................................34
Section 3.03. Notice of Redemption........................................................35
Section 3.04. Effect of Notice of Redemption..............................................36
Section 3.05. Deposit of Redemption Price.................................................36
Section 3.06. Securities Redeemed in Part.................................................36
ARTICLE 4. COVENANTS.....................................................................................36
Section 4.01. Payment of Securities.......................................................36
Section 4.02. Maintenance of Office or Agency.............................................36
Section 4.03. Limitation on Restricted Payments...........................................37
Section 4.04. Corporate Existence.........................................................39
Section 4.05. Payment of Taxes and Other Claims...........................................40
Section 4.06. Maintenance of Properties and Insurance.....................................40
Section 4.07. Compliance Certificate; Notice of Default...................................40
Section 4.08. Compliance with Laws........................................................41
Section 4.09. SEC Reports.................................................................41
Section 4.10. Waiver of Stay, Extension or Usury Laws.....................................41
Section 4.11. Limitation on Transactions with Affiliates..................................42
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 4.12. Limitation on Incurrence of Additional Indebtedness.........................42
Section 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries......................................................42
Section 4.14. Prohibition on Incurrence of Senior Subordinated
Indebtedness................................................................43
Section 4.15. Change of Control...........................................................43
Section 4.16. Limitation on Asset Sales...................................................45
Section 4.17. Limitation on Preferred Stock of Subsidiaries...............................47
Section 4.18. Limitation on Liens.........................................................47
Section 4.19. Guarantees of Certain Indebtedness..........................................48
Section 4.20. Limitation on Sale and Leaseback Transaction................................48
Section 4.21. Limitation on Line of Business..............................................48
Section 4.22. Limitation on Asset Swaps...................................................48
ARTICLE 5. SUCCESSOR CORPORATION.........................................................................49
Section 5.01. When Company May Merge, Etc.................................................49
Section 5.02. Successor Corporation Substituted...........................................49
ARTICLE 6. DEFAULT AND REMEDIES..........................................................................50
Section 6.01. Events of Default...........................................................50
Section 6.02. Acceleration................................................................51
Section 6.03. Other Remedies..............................................................51
Section 6.04. Waiver of Past Defaults.....................................................51
Section 6.05. Control by Majority.........................................................52
Section 6.06. Limitation on Suits.........................................................52
Section 6.07. Rights of Holders To Receive Payment........................................52
Section 6.08. Collection Suit by Trustee..................................................52
Section 6.09. Trustee May File Proofs of Claim............................................53
Section 6.10. Priorities..................................................................53
Section 6.11. Undertaking for Costs.......................................................53
ARTICLE 7. TRUSTEE.......................................................................................54
Section 7.01. Duties of Trustee...........................................................54
Section 7.02. Rights of Trustees..........................................................55
Section 7.03. Individual Rights of Trustee................................................56
Section 7.04. Trustee's Disclaimer........................................................56
Section 7.05. Notice of Default...........................................................56
Section 7.06. Reports by Trustee to Holders...............................................56
Section 7.07. Compensation and Indemnity..................................................57
Section 7.08. Replacement of Trustee......................................................57
Section 7.09. Successor Trustee by Merger, Etc............................................58
Section 7.10. Eligibility; Disqualification...............................................58
Section 7.11. Preferential Collection of Claims Against the Company.......................58
</TABLE>
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<TABLE>
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ARTICLE 8. DISCHARGE OF INDENTURE; DEFEASANCE............................................................59
Section 8.01. Termination of the Company's Obligations....................................59
Section 8.02. Acknowledgment of Discharge by Trustee......................................60
Section 8.03. Application of Trust Money..................................................60
Section 8.04. Repayment to the Company....................................................61
Section 8.05. Reinstatement...............................................................61
ARTICLE 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS...........................................................61
Section 9.01. Without Consent of Holder...................................................61
Section 9.02. With Consent of Holders.....................................................62
Section 9.03. Compliance with TIA.........................................................62
Section 9.04. Revocation and Effect of Consents...........................................63
Section 9.05. Notation on or Exchange of Securities.......................................63
Section 9.06. Trustee To sign Amendments, Etc.............................................63
ARTICLE 10. SUBORDINATION OF SECURITIES...................................................................64
Section 10.01. Securities Subordinated to Senior Indebtedness..............................64
Section 10.02. No Payment on Securities in Certain Circumstances...........................64
Section 10.03. Payment Over of Proceeds upon Dissolution, Etc..............................65
Section 10.04. Payments May Be Paid Prior to Dissolution...................................66
Section 10.05. Subrogation.................................................................67
Section 10.06. Obligations of the Company..................................................67
Section 10.07. Notice to Trustee...........................................................67
Section 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent..............68
Section 10.09. Trustee's Relation to Senior Indebtedness...................................68
Section 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness...............................68
Section 10.11. Securityholders Authorize Trustee To Effectuate
Subordination of Securities.................................................69
Section 10.12. This Article Ten Not To Prevent Events of Default...........................69
Section 10.13. Trustee's Compensation Not Prejudiced.......................................69
ARTICLE 11. GUARANTEES OF THE SECURITIES..................................................................69
Section 11.01. Guarantees..................................................................69
Section 11.02. Execution and Delivery of the Guarantees....................................71
Section 11.03. Additional Guarantors.......................................................71
Section 11.04. Limitation of Guarantors' Liability.........................................71
Section 11.05. Guarantors May Consolidate, etc., on Certain Terms..........................72
Section 11.06. Contribution................................................................72
Section 11.07. Waiver of Subrogation.......................................................72
</TABLE>
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ARTICLE 12. SUBORDINATION OF GUARANTEES...................................................................73
Section 12.01. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness................................................................73
Section 12.02. No Payment on Guarantees in Certain Circumstances...........................73
Section 12.03. Payment Over of Proceeds upon Dissolution, Etc..............................75
Section 12.04. Payments May Be Paid Prior to Dissolution...................................76
Section 12.05. Subrogation.................................................................76
Section 12.06. Guarantee Provisions Solely To Define Relative Rights.......................76
Section 12.07. Trustee to Effectuate Subordination of Obligations Under
the Guarantee...............................................................77
Section 12.08. No Waiver of Guarantee Subordination Provisions.............................77
Section 12.09. Guarantors to Give Notice to Trustee........................................78
Section 12.10. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, Etc., of Guarantors............................78
Section 12.11. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Right...............................78
Section 12.12. No Suspension of Remedies...................................................79
Section 12.13. Trustee's Relation to Guarantor Senior Indebtedness.........................79
Section 12.14. Subordination Rights Not Impaired by Acts or Omissions of
the Guarantors or Holders of Guarantor Senior Indebtedness..................79
Section 12.15. This Article Twelve Not To Prevent Events of Default........................80
ARTICLE 13. MISCELLANEOUS.................................................................................80
Section 13.01. TIA Controls................................................................80
Section 13.02. Notices.....................................................................80
Section 13.03. Communications by Holders with Other Holders................................81
Section 13.04. Certificate and opinion as to Conditions Precedent..........................81
Section 13.05. Statements Required in Certificate..........................................81
Section 13.06. Rules by Trustee, Paying Agent, Registrar...................................81
Section 13.07. Legal Holidays..............................................................81
Section 13.08. Governing Law...............................................................82
Section 13.09. No Adverse Interpretation of Other Agreements...............................82
Section 13.10. No Recourse Against Others..................................................82
Section 13.11. Successors..................................................................82
Section 13.12. Duplicate Originals.........................................................82
Section 13.13. Severability................................................................82
</TABLE>
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EXHIBITS
Exhibit A-1 Form of Global Security
Exhibit A-2 Form of Regulation S Temporary Global Security
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate from Acquiring Institutional Accredited
Investor
- -------------
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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<PAGE> 8
INDENTURE, dated as of September 30, 1998, among Chancellor
Media Corporation of Los Angeles, a Delaware corporation (the "COMPANY"), and
each subsidiary guarantor named on the signature pages hereto (collectively the
"GUARANTORS") and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's 9% Senior Subordinated Notes due October 1, 2008 (the "Securities"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL SECURITY" means a global security in the form of
Exhibit A-1 hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Securities sold in reliance on Rule 144A.
"8-1/8% NOTES" means the $500.0 million aggregate principal
amount of 8-1/8% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an indenture (the "8-1/8% NOTES INDENTURE"), dated as of December
22, 1997, as amended, as the same may be modified or amended from time to time
and future refinancings thereof.
"8-3/4% NOTES" means the $200.0 million aggregate principal
amount of 8-3/4% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an indenture (the "8-3/4% NOTES INDENTURE"), dated as of June 24,
1997, as amended, as the same may be modified or amended from time to time and
future refinancings thereof.
"9-3/8% NOTES" means the $200.0 million aggregate principal
amount of 9-3/8% Senior Subordinated Notes due 2004 of the Company, issued
pursuant to an indenture (the "9-3/8% NOTES INDENTURE"), dated as of February
14, 1996, as amended, as the same may be modified or amended from time to time
and future refinancings thereof.
"9-3/8% NOTES ISSUE DATE" means February 14, 1996.
"10-1/2% NOTES" means the $100.0 million aggregate principal
amount of 10-1/2% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an amended and restated indenture (the "10-1/2% NOTES INDENTURE"),
dated as of December 19, 1996, and amended and restated as of October 28, 1997,
as amended, as the same may be modified or amended from time to time and future
refinancings thereof.
"ACCELERATION NOTICE" has the meaning provided in Section
6.02.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
<PAGE> 9
"ACQUIRED PREFERRED STOCK" means Preferred Stock of any Person
at the time such Person becomes a Subsidiary of the Company or at the time it
merges or consolidates with the Company or any of its Subsidiaries and not
issued by such Person in connection with, or in anticipation or contemplation
of, such acquisition, merger or consolidation.
"ADJUSTED NET ASSETS" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee of such Guarantor at such date, and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any Subsidiary of such Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding debt in respect of the Guarantee, as
they become absolute and matured.
"AFFILIATE" of any Person means any other Person who, directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"AFFILIATE TRANSACTION" has the meaning provided in Section
4.11.
"AGENT" means any Registrar, Paying Agent or Co-Registrar.
"ASSET ACQUISITION" means (i) an Investment by the Company or
any Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be consolidated or merged with
the Company or any Subsidiary of the Company or (ii) the acquisition by the
Company or any Subsidiary of the Company of assets of any Person comprising a
division or line of business of such Person.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Subsidiaries (excluding any Sale and Leaseback Transaction
or any pledge of assets or stock by the Company or any of its Subsidiaries) to
any Person other than the Company or a Wholly-Owned Subsidiary of the Company of
(i) any Capital Stock of any Subsidiary of the Company or (ii) any other
property or assets of the Company or any Subsidiary of the Company other than in
the ordinary course of business; provided, however, that for purposes of Section
4.16, Asset Sales shall not include (a) a transaction or series of related
transactions for which the Company or its Subsidiaries receive aggregate
consideration of less than $500,000, (b) transactions permitted under Section
4.22, (c) transactions permitted under Section 5.01 or (d) any Contract Buy Out.
"ASSET SWAP" means the execution of a definitive agreement,
subject only to approval of the Federal Communications Commission and other
customary closing conditions, that the Company in good faith believes will be
satisfied, for a substantially concurrent purchase and sale, or exchange, of
Productive Assets between the Company or any of its Subsidiaries and another
Person or group of affiliated Persons; provided that any amendment to or waiver
of any closing condition which individually or in the aggregate is material to
the Asset Swap shall be deemed to be a new Asset Swap.
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<PAGE> 10
"ATTRIBUTABLE VALUE" in respect of a sale and leaseback
arrangement of any property means, as at the time of determination, the greater
of (i) the fair market value of the property subject to such arrangement (as
determined in good faith by the Board of Directors of the Company) or (ii) the
present value (discounted at the interest rate borne by the Securities,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such arrangement.
"BANKRUPTCY LAW" means Title 11, United States Code or any
similar federal, state or foreign law for the relief of debtors.
"BLOCKAGE PERIOD" shall have the meaning provided in Section
10.02.
"BOARD OF DIRECTORS" means, with respect to any Person, the
board of directors (or any other equivalent governing body) of such Person or
any committee of the board of directors of such Person duly authorized, with
respect to any particular matter, to exercise the power of the board of
directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP and, for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock, including each class of common stock and
Preferred Stock of such Person and (ii) with respect to any Person that is not a
corporation, any and all partnership or other equity interests of such Person.
"CASH EQUIVALENTS" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation or Moody's
Investors Service, Inc.; (iii) commercial paper maturing no more than one year
from the date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from Standard & Poor's Corporation or at least P-1 from
Moody's Investors Service, Inc.; (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition thereof issued
by any commercial bank organized under the laws of the United States of America
or any state thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and surplus of
not less than $200,000,000; (v) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(iv) above; and (vi) investments in money
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market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"CEDEL" means Cedel Bank, S.A.
"CHANCELLOR BROADCASTING" means Chancellor Broadcasting
Company, a Delaware corporation that was merged with and into Evergreen
Mezzanine Holdings Corporation, a Delaware corporation, on the Merger Date.
"CHANCELLOR MEDIA" means Chancellor Media Corporation, a
Delaware corporation formerly known as Evergreen Media Corporation, and its
successors.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "GROUP") (whether or not otherwise in
compliance with the provisions of this Indenture), other than to Hicks Muse or
any of its Affiliates, officers, and directors (the "PERMITTED HOLDERS"); or
(ii) a majority of the Board of Directors of Chancellor Media, CMHC or the
Company shall consist of Persons who are not Continuing Directors; or (iii) the
acquisition by any Person or Group (other than the Permitted Holders) of the
power, directly or indirectly, to vote or direct the voting of securities having
more than 50% of the ordinary voting power for the election of directors of
Chancellor Media, CMHC or the Company.
"CHANGE OF CONTROL DATE" has the meaning provided in Section
4.15.
"CHANGE OF CONTROL OFFER" has the meaning provided in Section
4.15.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning provided in
Section 4.15.
"CMHC" means Chancellor Mezzanine Holdings Corporation, a
Delaware corporation formerly known as Evergreen Mezzanine Holdings Corporation,
and its successors.
"COMMODITY AGREEMENT" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by the
Company or any of its Subsidiaries designed to protect the Company or any of its
Subsidiaries against fluctuations in the price of commodities actually used in
the ordinary course of business of the Company and its Subsidiaries.
"COMPANY" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor and also includes for the purposes of any provision contained
herein and required by the TIA any other obligor on the Securities.
"CONSOLIDATED EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable to extraordinary
or non-recurring gains or losses), (B) Consolidated Interest Expense and (C)
Consolidated Non-Cash Charges, all as determined on a consolidated basis for
such Person and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
Person for any period, without duplication, the sum of (i) the interest expense
of such Person and its Subsidiaries for such period
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<PAGE> 12
as determined on a consolidated basis in accordance with GAAP, including,
without limitation, (a) any amortization of debt discount, (b) the net cost
under Interest Swap Obligations (including any amortization of discounts), (c)
the interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bankers' acceptance financing or similar facilities, and (e) all accrued
interest and (ii) the interest component of Capitalized Lease Obligations paid
or accrued by such Person and its Subsidiaries during such period as determined
on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" of any Person means, for any period,
the aggregate net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (a) gains and
losses from Asset Sales (without regard to the $500,000 limitation set forth in
the definition thereof) or abandonments or reserves relating thereto and the
related tax effects, (b) items classified as extraordinary or nonrecurring gains
and losses, and the related tax effects according to GAAP, (c) the net income
(or loss) of any Person acquired in a pooling of interests transaction accrued
prior to the date it becomes a Subsidiary of such first referred to Person or is
merged or consolidated with it or any of its Subsidiaries, (d) the net income of
any Subsidiary to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is restricted by contract,
operation of law or otherwise and (e) the net income of any Person, other than a
Subsidiary, except to the extent of the lesser of (x) dividends or distributions
paid to such first referred to Person or its Subsidiary by such Person and (y)
the net income of such Person (but in no event less than zero), and the net loss
of such Person shall be included only to the extent of the aggregate Investment
of the first referred to Person or a consolidated Subsidiary of such Person.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any
Person for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Subsidiaries reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary or nonrecurring item).
"CONTINUING DIRECTOR" means, as of the date of determination,
any Person who (i) was a member of the Board of Directors of Chancellor Media,
CMHC or the Company on the date of this Indenture, (ii) was nominated for
election or elected to the Board of Directors of Chancellor Media, CMHC or the
Company with the affirmative vote of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or
election, or (iii) is a representative of a Permitted Holder.
"CONTRACT BUY OUT" means the involuntary disposition or
termination (including, without limitation, pursuant to buy out) of a contract
between a media representation company and a client station.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 101 Barclay Street, Floor 21W, New York, New York 10286.
"CRBC" means Chancellor Radio Broadcasting Company, a Delaware
corporation that was merged with and into the Company on the Merger Date.
"CREDIT AGREEMENT" means the Credit Agreement, dated on or
about February 14, 1996, among Chancellor Broadcasting, CRBC, the lenders
thereto and Bankers Trust Company as managing
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<PAGE> 13
agent, as such agreement may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding Subsidiaries of CRBC as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under
such agreement or any successor or replacement agreement and whether by the same
or any other agent, lender or group of lenders.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Subsidiaries against fluctuations in currency
values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be an Event
of Default.
"DEFAULT NOTICE" shall have the meaning provided in Section
10.02.
"DEFINITIVE SECURITY" means a certificated Security registered
in the name of the Holder thereof and issued in accordance with Section 2.06
hereof, in the form of Exhibit A-1 hereto except that such Security shall not
bear the Global Security Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Security" attached thereto.
"DEPOSITARY" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Securities, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"DESIGNATED GUARANTOR SENIOR INDEBTEDNESS" means (i)
Indebtedness guaranteed by a Guarantor under or in respect of the Senior Credit
Facility and (ii) any other Indebtedness constituting Guarantor Senior
Indebtedness which, at the time of determination, has an aggregate principal
amount of at least $25,000,000 and is specifically designated in the instrument
evidencing such Guarantor Senior Indebtedness as Designated Guarantor Senior
Indebtedness by the Guarantor.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness under
or in respect of the Senior Credit Facility and (ii) any other Indebtedness
constituting Senior Indebtedness which, at the time of determination, has an
aggregate principal amount of at least $25,000,000 and is specifically
designated in the instrument evidencing such Senior Indebtedness as Designated
Senior Indebtedness by the Company.
"DISCHARGED" has the meaning provided in Section 8.01.
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except, in
each case, upon the occurrence of a Change of Control), in whole or in part, on
or prior to the final maturity date of the Securities.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
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<PAGE> 14
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
"EXCHANGE SECURITIES" means the Securities issued in the
Exchange Offer pursuant to Section 2.06(f) hereof.
"FINANCIAL MONITORING AND OVERSIGHT AGREEMENTS" means the
Financial Monitoring and Oversight Agreement among Hicks, Muse & Co. Partners,
L.P., CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes Issue
Date, and the Financial Advisory Agreement among HM2/Management Partners, L.P.,
CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes Issue Date,
or as each is amended in connection with the merger of Chancellor Broadcasting,
CRBC, Chancellor Media, CMHC and the Company on the Merger Date.
"FUNDING GUARANTOR" has the meaning provided in Section 12.06.
"FUNDS" has the meaning provided in Section 8.01.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the Issue Date.
"GLOBAL SECURITIES" means, individually and collectively, each
of the Restricted Global Securities and the Unrestricted Global Securities, in
the form of Exhibit A-1 and Exhibit A-2 hereto issued in accordance with Section
2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Securities issued
under this Indenture.
"GUARANTEES" means the guarantees of the Securities on a
senior subordinated basis by the Guarantors pursuant to Article Eleven.
"GUARANTORS" means (i) initially, all of the Company's
Subsidiaries on the Issue Date except Katz International Limited, Katz
Television Sales Limited, Katz Radio Sales Limited and National Cable
Communications, L.P. and (ii) each of the Company's Subsidiaries that,
subsequent to the Issue Date, executes a supplemental indenture in which such
Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor;
provided that any Person constituting a Guarantor as described above shall cease
to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms thereof.
"GUARANTOR SENIOR INDEBTEDNESS" means any Indebtedness of a
Guarantor (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law), whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
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<PAGE> 15
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantees. Without limiting the generality of the
foregoing, Guarantor Senior Indebtedness shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, and all monetary
obligations of every nature under, (x) the Senior Credit Facility, including,
without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities, and (y) all
Interest Swap Obligations. Notwithstanding the foregoing, Guarantor Senior
Indebtedness shall not include any of the following amounts (whether or not
constituting Indebtedness as defined in this Indenture): (i) any Indebtedness of
a Guarantor to a Subsidiary of such Guarantor; (ii) Indebtedness and other
amounts owing to trade creditors incurred in connection with obtaining goods,
materials or services; (iii) Indebtedness represented by Disqualified Capital
Stock; (iv) any liability for federal, state, local or other taxes owed or owing
by a Guarantor; (v) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such Guarantor;
and (vi) guarantees of each of the 9-3/8% Notes, the 8-3/4% Notes, the 10-1/2%
Notes and the 8-1/8% Notes.
"HICKS MUSE" means Hicks, Muse, Tate & Furst Incorporated, a
Texas corporation.
"HOLDER" or "SECURITYHOLDER" means the Person in whose name a
Security is registered on the Registrar's books.
"INDEBTEDNESS" means with respect to any Person, without
duplication, any liability of such Person (i) for borrowed money, (ii) evidenced
by bonds, debentures, notes or other similar instruments, (iii) constituting
Capitalized Lease obligations, (iv) incurred or assumed as the deferred purchase
price of property, or pursuant to conditional sale obligations and title
retention agreements (but excluding trade accounts payable arising in the
ordinary course of business), (v) for the reimbursement of any obligor on any
letter of credit, bankers' acceptance or similar credit transaction, (vi) for
Indebtedness of others guaranteed by such Person, (vii) for Interest Swap
Obligations, Commodity Agreements and Currency Agreements and (viii) for
Indebtedness of any other Person of the type referred to in clauses (i) through
(vii) which are secured by any Lien on any property or asset of such first
referred to Person, the amount of such Indebtedness being deemed to be the
lesser of the value of such property or asset or the amount of the Indebtedness
so secured. The amount of Indebtedness of any Person at any date shall be the
outstanding principal amount of all unconditional obligations described above,
as such amount would be reflected on a balance sheet prepared in accordance with
GAAP, and the maximum liability at such date of such Person for any contingent
obligations described above.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"INITIAL PURCHASERS" means Goldman, Sachs & Co., pursuant to
the Purchase Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
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"INTEREST PAYMENT DATE" means the stated maturity of an
installment of interest on the Securities.
"INTEREST SWAP OBLIGATIONS" means the obligations of any
Person under any interest rate protection agreement, interest rate future,
interest rate option, interest rate swap, interest rate cap or other interest
rate hedge or arrangement.
"INVESTMENT" means (i) any transfer or delivery of cash, stock
or other property of value in exchange for Indebtedness, stock or other security
or ownership interest in any Person by way of loan, advance, capital
contribution, guarantee or otherwise and (ii) an investment deemed to have been
made by the Company at the time any entity which was a Subsidiary of the Company
ceases to be such a Subsidiary in an amount equal to the value of the loans and
advances made, and any remaining ownership interest in, such entity immediately
following such entity ceasing to be a Subsidiary of the Company. The amount of
any non-cash Investment shall be the fair market value of such Investment, as
determined conclusively in good faith by management of the Company unless the
fair market value of such Investment exceeds $1,000,000, in which case the fair
market value shall be determined conclusively in good faith by the Board of
Directors of the Company at the time such Investment is made.
"ISSUE DATE" means the date of original issuance of the Series
A Securities.
"LEGAL HOLIDAY" has the meaning provided in Section 13.07.
"LEVERAGE RATIO" shall mean, as to any Person, the ratio of
(i) the sum of the aggregate outstanding amount of Indebtedness of such Person
and its Subsidiaries as of the date of calculation on a consolidated basis in
accordance with GAAP to (ii) the Consolidated EBITDA of such Person for the four
full fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the date
of determination.
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Person and its Subsidiaries for which
such calculation is made shall be determined on a pro forma basis as if the
Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied, and all other transactions
in respect of which such Indebtedness is being incurred had occurred, on the
last day of the Four Quarter Period. In addition to the foregoing, for purposes
of this definition, "CONSOLIDATED EBITDA" shall be calculated on a pro forma
basis after giving effect to (i) the incurrence of the Indebtedness of such
Person and its Subsidiaries (and the application of the proceeds therefrom)
giving rise to the need to make such calculation and any incurrence (and the
application of the proceeds therefrom) or repayment of other Indebtedness, other
than the incurrence or repayment of Indebtedness pursuant to working capital
facilities, at any time subsequent to the beginning of the Four Quarter Period
and on or prior to the date of determination, as if such incurrence (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of the Four Quarter Period and (ii) any Asset Sales or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Subsidiaries (including any Person who becomes a Subsidiary as a result of
such Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) at any time on or subsequent to the first day of the Four Quarter
Period and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness and also including any Consolidated EBITDA associated with
such Asset Acquisition) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating Consolidated Interest Expense, for purposes of the
calculation of Consolidated EBITDA, (i) interest on Indebtedness determined on a
fluctuating basis as of the date of determination (including Indebtedness
actually incurred on the date of the transaction giving rise to the need
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<PAGE> 17
to calculate the Leverage Ratio) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness as in effect on the date of
determination and (ii) notwithstanding (i) above, interest determined on a
fluctuating basis, to the extent such interest is covered by Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"LIEN" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"MATURITY DATE" means October 1, 2008.
"MERGER DATE" means September 5, 1997.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers fees and costs reasonably incurred in preparation of any asset or
property for sale), (ii) taxes paid or reasonably estimated to be payable
(calculated based on the combined state, federal and foreign statutory tax rates
applicable to the Company or the Subsidiary engaged in such Asset Sale) and
(iii) repayment of Indebtedness secured by assets subject to such Asset Sale;
provided that if the instrument or agreement governing such Asset Sale requires
the transferor to maintain a portion of the purchase price in escrow (whether as
a reserve for adjustment of the purchase price or otherwise) or to indemnify the
transferee for specified liabilities in a maximum specified amount, the portion
of the cash or Cash Equivalents that is actually placed in escrow or segregated
and set aside by the transferor for such indemnification obligation shall not be
deemed to be Net Cash Proceeds until the escrow terminates or the transferor
ceases to segregate and set aside such funds, in whole or in part, and then only
to the extent of the proceeds released from escrow to the transferor or that are
no longer segregated and set aside by the transferor.
"NET PROCEEDS OFFER" has the meaning provided in Section 4.16.
"NON-U.S. PERSON" means a person who is not a U.S. person, as
defined in Regulation S.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing, or otherwise relating to,
any Indebtedness.
"OFFERING CIRCULAR" means the Offering Circular dated
September 25, 1998 pursuant to which $750.0 million in aggregate principal
amount of the Securities were offered, and any supplement thereto.
"OFFICER" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
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<PAGE> 18
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05, as they relate to the making of an
Officers' Certificate.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 13.04 and 13.05, as they relate to the giving of an
opinion of Counsel.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"PAYING AGENT" has the meaning provided in Section 2.03,
except that, during the continuance of a Default or Event of Default and for the
purposes of Articles Three and Eight and Sections 4.15 and 4.16, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"PENDING TRANSACTIONS" has the meaning set forth in the
Offering Circular.
"PERMITTED INDEBTEDNESS" means, without duplication, (i) the
Securities; (ii) the Guarantees; (iii) Indebtedness of the Company incurred
pursuant to the Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed the sum of the aggregate commitments pursuant to the
Credit Agreement as initially in effect on the 9-3/8% Notes Issue Date; (iv) the
9-3/8% Notes, the 8-3/4% Notes, the 10-1/2% Notes and the 8-1/8% Notes, and the
Guarantees thereof; (v) Interest Swap Obligations; provided that such Interest
Swap Obligations are entered into to protect the Company from fluctuations in
interest rates of its Indebtedness; (vi) additional Indebtedness of the Company
or any of its Subsidiaries not to exceed $10,000,000 in principal amount
outstanding at any time (which amount may, but need not, be incurred under the
Senior Credit Facility); (vii) Refinancing Indebtedness; (viii) Indebtedness
owed by the Company to any Wholly-Owned Subsidiary or by any Subsidiary to the
Company or any Wholly-Owned Subsidiary of the Company; and (ix) guarantees by
Subsidiaries of any Indebtedness permitted to be incurred pursuant to this
Indenture.
"PERMITTED INVESTMENTS" means (i) Investments by the Company
or any Subsidiary to acquire the stock or assets of any Person (or Indebtedness
of such Person acquired in connection with a transaction in which such Person
becomes a Subsidiary of the Company) engaged in the broadcast business or
businesses reasonably related thereto, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or related thereto; provided that if any such Investment or series of
related Investments involves an Investment by the Company in excess of
$5,000,000, the Company is able, at the time of such Investment and immediately
after giving effect thereto, to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12, (ii)
Investments received by the Company or its Subsidiaries as consideration for a
sale of assets, including an Asset Sale effected in compliance with Section
4.16, (iii) Investments by the Company or any Wholly-Owned Subsidiary of the
Company in any Wholly-Owned Subsidiary of the Company (whether existing on the
Issue Date or created thereafter) or any Person that after such Investments, and
as a result thereof, becomes a Wholly-Owned Subsidiary of the Company and
Investments in the Company by any Wholly-Owned Subsidiary of the Company, (iv)
cash and Cash Equivalents, (v) Investments in securities of trade creditors,
wholesalers or customers received pursuant to any plan of reorganization or
similar arrangement and (vi) additional Investments in an aggregate amount not
to exceed $2,500,000 at any time outstanding.
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<PAGE> 19
"PERMITTED LIENS" means (i) Liens for taxes, assessments and
governmental charges to the extent not required to be paid under this Indenture,
(ii) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like Liens to the extent not required
to be paid under this Indenture, (iii) pledges or deposits to secure lease
obligations or nondelinquent obligations under workers' compensation,
unemployment insurance or similar legislation, (iv) Liens to secure the
performance of public statutory obligations that are not delinquent, performance
bonds or other obligations of a like nature (other than for borrowed money), in
each case incurred in the ordinary course of business, (v) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances incurred in the ordinary course of business not
interfering in any material respect with the business of the Company or its
Subsidiaries, (vi) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of letters
of credit or bankers' acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or
other goods in the ordinary course of business, (vii) judgment and attachment
Liens not giving rise to an Event of Default, (viii) leases or subleases granted
to others in the ordinary course of business consistent with past practice not
interfering in any material respect with the business of the Company or its
Subsidiaries, (ix) any interest or title of a lessor in the property subject to
any lease, whether characterized as capitalized or operating other than any such
interest or title resulting from or arising out of a default by the Company or
its Subsidiaries of its obligations under such lease and (x) Liens arising from
filing UCC financing statements for precautionary purposes in connection with
true leases of personal property that are otherwise permitted under this
Indenture and under which the Company or any of its Subsidiaries is a lessee.
"PERSON" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"PREFERRED STOCK" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"PRINCIPAL" of any Indebtedness (including the Securities)
means the principal amount of such Indebtedness plus the premium, if any, on
such Indebtedness.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"PROCEEDS PURCHASE DATE" shall have the meaning provided in
Section 4.16.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by
the Company and its Subsidiaries in broadcast businesses or businesses
reasonably related thereto, including, without limitation, media representation,
sale of advertising and such other activities as are incidental or similar or
related thereto, and specifically includes assets acquired through Asset
Acquisitions.
"PUBLIC EQUITY OFFERING" means an underwritten, fully
registered public offering of Capital Stock (other than Disqualified Capital
Stock) of the Company, Chancellor Media, CMHC or upon consummation of the
Capstar Merger, Capstar Broadcasting Corporation, or any of their respective
successors, pursuant to an effective registration statement filed with the
Commission in accordance with the Securities Act, the gross proceeds of which
are at least $150 million; provided, however, that in the case of
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<PAGE> 20
a Public Equity Offering by Chancellor Media, CMHC or upon consummation of the
Capstar Merger, Capstar Broadcasting Corporation, or any of their respective
successors, the issuer of the public equity must contribute to the capital of
the Company an amount sufficient to redeem the Notes, if any, called for
redemption in accordance with the terms thereof. For the avoidance of doubt, no
(i) offerings pursuant to rule 144A of the Securities Act, (ii) "best efforts"
offerings (even if registered), or (iii) private placements of capital stock
shall qualify as "Public Equity Offerings."
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of
September 25, 1998 by and among the Company, the Guarantors and the Initial
Purchasers relating to the purchase of $750.0 million aggregate principal amount
of Securities.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"REDEMPTION DATE" means, with respect to any Securities, the
Maturity Date of such Security or the earlier date on which such Security is to
be redeemed by the Company pursuant to the terms of the Securities.
"REDEMPTION PRICE" shall have the meaning provided in Section
3.03.
"REFINANCING INDEBTEDNESS" means any refinancing by the
Company of Indebtedness of the Company or any of its Subsidiaries incurred in
accordance with Section 4.12 (other than pursuant to clause (iii) or (iv) of the
definition of Permitted Indebtedness) that does not (i) result in an increase in
the aggregate principal amount of Indebtedness (such principal amount to
include, for purposes of this definition, any premiums, penalties or accrued
interest paid with the proceeds of the Refinancing Indebtedness) of such Person
or (ii) create Indebtedness with (A) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being refinanced.
"REGISTERED EXCHANGE OFFER" means the consummation of the
offer to exchange the Series B Securities for all of the outstanding Series A
Securities in accordance with the Registration Rights Agreement.
"REGISTRAR" has the meaning provided in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
relating to $750.0 million aggregate principal amount of Securities and dated
the Issue Date, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent
global Security in the form of Exhibit A-1 hereto bearing the Global Security
Legend and the Private Placement Legend and
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<PAGE> 21
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Regulation S Temporary Global Security upon expiration of the Restricted
Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary
global Security in the form of Exhibit A-2 hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Securities
initially sold in reliance on Rule 903 of Regulation S.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times constitute the holders of a majority in
outstanding principal amount of such Designated Senior Indebtedness.
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security
bearing the Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing
the Private Placement Legend.
"RESTRICTED PAYMENT" has the meaning provided in Section 4.03.
"RESTRICTED PERIOD" means the 40 day restricted period as
defined in Regulation S.
"RESTRICTED SECURITY" as defined in Rule 144A(a)(3) under the
Securities Act; provided, however, that the Trustee shall be entitled to request
and conclusively rely on an Opinion of Counsel with respect to whether any
Security constitutes a Restricted Security.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced by
such Person on the security of such property.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Series A Securities and Series B
Securities, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
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<PAGE> 22
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"SENIOR CREDIT FACILITY" means the Second Amended and Restated
Loan Agreement, dated April 25, 1997, as amended from time to time, among the
Company, the lenders from time to time named party thereto, Toronto Dominion
(Texas), Inc., Bankers Trust Company, The Bank of New York, NationsBank of
Texas, N.A. and Union Bank of California, as managing agents, Toronto Dominion
Securities (USA), Inc., as arranging agent, and Toronto Dominion (Texas), Inc.,
as administrative agent for the lenders, together with the related documents
thereto (including, without limitation, any guarantee agreements, stock pledge
agreements and other security documents), in each case, as such agreements may
be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by way
of adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law), whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities. Without limiting the generality of the foregoing, Senior
Indebtedness shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of, and all monetary obligations of every
nature under, (x) the Senior Credit Facility, including, without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, and (y) all Interest Swap
Obligations. Notwithstanding the foregoing, Senior Indebtedness shall not
include any of the following amounts (whether or not constituting Indebtedness
as defined in this Indenture): (i) any Indebtedness of the Company to a
Subsidiary of the Company; (ii) Indebtedness and other amounts owing to trade
creditors incurred in connection with obtaining goods, materials or services;
(iii) Indebtedness represented by Disqualified Capital Stock; (iv) any liability
for federal, state, local or other taxes owed or owing by the Company; and (v)
any Indebtedness which is, by its express terms, subordinated in right of
payment to any other Indebtedness of the Company, including the 9-3/8% Notes,
the 8-3/4% Notes, the 10-1/2% Notes and the 8-1/8% Notes.
"SERIES A SECURITIES" means the 9% Senior Subordinated Notes
due October 1, 2008, Series A, issued, authenticated and delivered under this
Indenture, as amended or supplemented from time to time pursuant to the terms of
this Indenture.
"SERIES B SECURITIES" means the 9% Senior Subordinated Notes
due October 1, 2008, Series B (the terms of which are identical to the Series A
Securities except that, unless any Series B Securities shall be issued as
Private Exchange Securities (as defined in the Registration Rights Agreement),
the Series B Securities shall be registered under the Securities Act, and shall
not contain the respective legend on the face of the form of the Series A
Securities), to be issued in exchange for the Series A Securities pursuant to
the Registered Exchange Offer and this Indenture or the Private Exchange (as
defined in the Registration Rights Agreement).
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<PAGE> 23
"SHELF REGISTRATION" means the Shelf Registration as defined
in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means for any Person each Subsidiary
of such Person which (i) for the most recent fiscal year of such Person
accounted for more than 5% of the consolidated net income of such Person or (ii)
as at the end of such fiscal year, was the owner of more than 5% of the
consolidated assets of such Person.
"SUBSIDIARY," with respect to any Person, (i) means any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person. Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to financial
information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its Subsidiaries as to which financial
statements are prepared on a combined basis in accordance with GAAP and to
financial information prepared on such a combined basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall not
be deemed to be a Subsidiary for purposes of this Indenture.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement
between CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes Issue
Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date on which this
Indenture is qualified under the TIA, except as otherwise provided in Section
9.03.
"TRUST OFFICER" means (a) any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and (b) who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"UNRESTRICTED DEFINITIVE SECURITY" means one or more
Definitive Securities that do not bear and are not required to bear the Private
Placement Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent global
Security in the form of Exhibit A-1 attached hereto that bears the Global
Security Legend and that has the "Schedule of Exchanges of Interests in the
Global Security" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of
Securities that do not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of the Company
created after the 9-3/8% Notes Issue Date and so designated by a resolution
adopted by the Board of Directors of the Company, provided that (a) neither the
Company nor any of its other Subsidiaries (other than Unrestricted
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<PAGE> 24
Subsidiaries) (1) provides any credit support for any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (2) is directly or indirectly liable for any Indebtedness of
such Subsidiary, (b) the creditors with respect to Indebtedness for borrowed
money of such Subsidiary, having a principal amount in excess of $5,000,000,
have agreed in writing that they have no recourse, direct or indirect, to the
Company or any other Subsidiary of the Company (other than Unrestricted
Subsidiaries), including, without limitation, recourse with respect to the
payment of principal of or interest on any Indebtedness of such Subsidiary and
(c) at the time of designation of such Subsidiary such Subsidiary has no
property or assets (other than de minimis assets resulting from the initial
capitalization of such Subsidiary). Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by the filing with
the Trustee of a certified copy of the resolution of the Company's Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions. Until
otherwise designated by the Board of Directors of the Company, National Cable
Communications, L.P., a Delaware limited partnership, shall be an Unrestricted
Subsidiary.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning provided in
Section 8.01.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"WHOLLY-OWNED SUBSIDIARY" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other than
directors, qualifying shares) which normally have the right to vote in the
election of directors are owned by such Person or any Wholly-Owned Subsidiary of
such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or a
Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Company or any other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the 9-3/8% Notes Issue
Date;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) "HEREIN," "HEREOF" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(6) all references herein and in the Securities to "INTEREST"
on the Securities shall be deemed to include "ADDITIONAL INTEREST" due and
payable pursuant to the Registration Rights Agreement.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM AND DATING.
(a) General. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibits A-1 and A-2
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Securities. Securities issued in global form shall
be substantially in the form of Exhibits A-1 or A-2 attached hereto (including
the Global Security Legend thereon and the "Schedule of Exchanges of Interests
in the Global Security" attached thereto). Securities issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Security Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Security" attached thereto). Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or
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decrease in the aggregate principal amount of outstanding Securities represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Temporary Global Securities. Securities offered and sold
in reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Security, which shall be deposited on behalf of
the purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Security bearing a Private Placement Legend, all as contemplated
by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the
Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Security shall be exchanged for
beneficial interests in Regulation S Permanent Global Securities pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Securities, the Trustee shall cancel the Regulation S Temporary
Global Security upon written order of the Company signed by an Officer. The
aggregate principal amount of the Regulation S Temporary Global Security and the
Regulation S Permanent Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interests as
hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Security and the
Regulation S Permanent Global Securities that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Securities for the Company by manual
or facsimile signature. Each Guarantor shall execute a Guarantee in the manner
set forth in Section 11.02. The Company's seal shall be reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time a Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer (an "Authentication Order"), authenticate Securities for original
issue up to the aggregate principal amount stated in paragraph 4 of the
Securities. The aggregate principal amount of Securities outstanding at any time
may not exceed such amount except as provided in Section 2.07 hereof.
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The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("REGISTRAR") and an office or agency where Securities may be presented for
payment ("PAYING AGENT"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Securities.
The Company shall, prior to the Record Date, notify the Paying
Agent of any wire transfer instructions for payments that it receives from
Holders.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Securities.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee five
(5) Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form
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and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Securities and the Company shall otherwise comply
with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Securities. A Global
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary, by a nominee of the Depositary to the Depositary or to
another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Securities (in whole but not in part) should be
exchanged for Definitive Securities and delivers a written notice to such effect
to the Trustee; provided that in no event shall the Regulation S Temporary
Global Security be exchanged by the Company for Definitive Securities prior to
(x) the expiration of the Restricted Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act and provided further, there shall be no continuing Default or
Event of Default. Upon the occurrence of either of the preceding events in (i)
or (ii) above, Definitive Securities shall be registered in such names as the
Depositary shall instruct the Trustee, in writing. Global Securities also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Security executed, authenticated and delivered in exchange
for, or in lieu of, a Global Security or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 hereof, shall be executed, authenticated
and delivered in the form of, and shall be, a Global Security. A Global Security
may not be exchanged for another Security other than as provided in this Section
2.06(a); however, beneficial interests in a Global Security may be transferred
and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Securities. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Security may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Security
may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Security. No written
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.06(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Security in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Security shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no
event shall Definitive Securities be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global
Security prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to
Rule 903 under the Securities Act. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Securities. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in
Global Securities contained in this Indenture and the Securities or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Securities pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Security. A beneficial interest in any Restricted Global
Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Security
if the transfer complies with the requirements of Section 2.06(b)(ii)
above and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Security or the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Security for Beneficial Interests in the Unrestricted
Global Security. A beneficial interest in any Restricted Global
Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security if the exchange or transfer complies with
the requirements of Section 2.06(b)(ii) above and:
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(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in
a Restricted Global Security proposes to exchange
such beneficial interest for a beneficial interest in
an Unrestricted Global Security, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof;
or
(2) if the holder of such beneficial interest in
a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an
Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities to
Restricted Definitive Securities. If any holder of a beneficial
interest in a Restricted Global Security proposes to exchange such
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beneficial interest for a Restricted Definitive Security or to transfer
such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Security, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof:
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued
in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.06(c) shall be registered
in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the
Persons in whose names such Securities are so registered. Any
Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained
therein.
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(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Security may
not be exchanged for a Definitive Security or transferred to a Person
who takes delivery thereof in the form of a Definitive Security prior
to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities to
Unrestricted Definitive Securities. A holder of a beneficial interest
in a Restricted Global Security may exchange such beneficial interest
for an Unrestricted Definitive Security or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Securities or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Definitive
Security that does not bear the Private Placement
Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive
Security that does not bear the Private Placement
Legend, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D) an
Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
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(iv) Beneficial Interests in Unrestricted Global Securities to
Unrestricted Definitive Securities. If any holder of a beneficial
interest in an Unrestricted Global Security proposes to exchange such
beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Security, then, upon satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Security to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Securities to the Persons in whose names such
Securities are so registered. Any Definitive Security issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests in Global Securities.
(i) Restricted Definitive Securities to Beneficial Interests
in Restricted Global Securities. If any Holder of a Restricted
Definitive Security proposes to exchange such Security for a beneficial
interest in a Restricted Global Security or to transfer such Restricted
Definitive Securities to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Security, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Security
proposes to exchange such Security for a beneficial interest
in a Restricted Global Security, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B)
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through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof;
(F) if such Restricted Definitive Security is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security,
and increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Security, in the case of clause (B) above,
the 144A Global Security, and in the case of clause (c) above,
the Regulation S Global Security.
(ii) Restricted Definitive Securities to Beneficial Interests
in Unrestricted Global Securities. A Holder of a Restricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive
Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Securities
proposes to exchange such Securities for a beneficial
interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Securities
proposes to transfer such Securities to a Person who shall
take delivery thereof in the form of a beneficial interest
in the Unrestricted Global Security, a certificate from
such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D) an
Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Security.
(iii) Unrestricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of an
Unrestricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or transfer such
Definitive Securities to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Security
and increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to
a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.
(e) Transfer and Exchange of Definitive Securities for
Definitive Securities. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Security if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
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(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d)
thereof.
(ii) Restricted Definitive Securities to Unrestricted
Definitive Securities. Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Securities proposes to exchange such Securities for an
Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities
may transfer such Securities to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Securities pursuant to the instructions from
the Holder thereof.
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(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Securities in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Securities tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Securities and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Securities in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Securities accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Securities so accepted Definitive Securities in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the face of
all Global Securities and Definitive Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Security and each Definitive Security (and all
Securities issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following
form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES OF AMERICA AND OTHER
JURISDICTIONS."
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.06 (and all Securities
issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
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(ii) Global Security Legend. Each Global Security shall bear a
legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE,
(II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(iii) Regulation S Temporary Global Security Legend. The
Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN)."
(h) Cancellation and/or Adjustment of Global Securities. At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Definitive Securities upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Security or to a Holder of a Definitive
Security for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such
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transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Security selected for redemption in whole
or in part, except the unredeemed portion of any Security being
redeemed in part.
(iv) All Global Securities and Definitive Securities issued
upon any registration of transfer or exchange of Global Securities or
Definitive Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Definitive Securities
surrendered upon such registration of transfer or exchange.
(v) The Registrar shall not be required (A) to issue, to
register the transfer of or to exchange any Securities during a period
beginning at the opening of business 15 days before the day of any
selection of Securities for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (c) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.07. REPLACEMENT SECURITIES
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee, shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity sufficient in the judgment of the Company and the Trustee to protect
the Company, the Trustee or, any Agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge such Holder for its
reasonable, out of pocket expenses in replacing a Security, including reasonable
fees and expenses of counsel.
Every replacement Security shall constitute an additional
obligation of the Company.
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SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
A mutilated Security ceases to be outstanding upon surrender
of such Security and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of
the principal and interest due on the Securities payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver, consent or notice,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Securities, of the aggregate
principal amount of such Securities so repurchased or otherwise acquired.
SECTION 2.10. TEMPORARY SECURITIES
Until certificates representing Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate Temporary
Securities upon receipt of a written order of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of,
Temporary Securities to be authenticated and the date on which the Temporary
Securities are to be authenticated. Temporary Securities shall be substantially
in the form of certificated Securities but may have variations that the Company
considers appropriate for temporary Securities and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and execute, and the Trustee shall authenticate upon receipt of a written
Authentication Order definitive Securities in exchange for Temporary Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Securities
to replace Securities that the Company has paid or delivered to the Trustee for
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cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent lawful)
any, interest payable on the defaulted interest, to the Persons who are Holders
on a subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
the CUSIP numbers.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date or Maturity Date, as the case may be.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to
paragraph 6 of the Securities, it shall notify the Trustee and the Paying Agent
in writing of the Redemption Date and the principal amount of the Securities to
be redeemed and whether it wants the Trustee to give notice of redemption to the
Holders (at the Company's expense) at least 30 days (unless a shorter notice
shall be satisfactory to the Trustee) but not more than 90 days before the
Redemption Date. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If fewer than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities
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exchange, if any, on which the Securities being redeemed are listed, or, if the
Securities are not listed on a national securities exchange, on a pro rata
basis, by lot or in such other fair and reasonable manner chosen at the
discretion of the Trustee; provided, however, that a redemption pursuant to the
provisions of paragraph 6(b) of the Securities shall be made on a pro rata
basis.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 or less may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first-class mail to each Holder whose Securities are to be redeemed, with a copy
to the Trustee. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Securities to be redeemed (including CUSIP
numbers) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest,
if any, to be paid (the "REDEMPTION PRICE");
(3) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price upon surrender to the
Paying Agent of the Securities redeemed;
(7) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
(8) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption.
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SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the Redemption Date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price
of all Securities to be redeemed on that date. The Paying Agent shall promptly
return to the Company any U.S. Legal Tender so deposited which is not required
for that purpose, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, interest on
the Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part,
the Trustee shall authenticate for the Holder a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment.
Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
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SECTION 4.03. LIMITATION ON RESTRICTED PAYMENTS.
Neither the Company nor any of its Subsidiaries will, directly
or indirectly, (a) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital Stock of the
Company) on shares of the Company's Capital Stock, (b) purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock or any warrants, rights or
options to acquire shares of any class of such Capital Stock for Qualified
Capital Stock or warrants, rights or options to acquire Qualified Capital Stock,
(c) make any principal payment on, purchase, defease, redeem, prepay, decrease
or otherwise acquire or retire for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, any Indebtedness of the
Company or its Subsidiaries that is subordinate or junior in right of payment to
the Securities, or (d) make any Investment (other than Permitted Investments)
(each of the foregoing prohibited actions set forth in clauses (a), (b), (c) and
(d) being referred to as a "RESTRICTED PAYMENT"), if, at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default has occurred and is continuing, (ii) the Company is not able
to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12, or (iii) the aggregate amount of
Restricted Payments made by the Company on or after the Merger Date, together
with the aggregate amount of Restricted Payments made by CRBC subsequent to the
9-3/8% Notes Issue Date and through September 4, 1997 (the amount expended for
such purposes, if other than in cash, being the fair market value of such
property as determined by the respective Board of Directors in good faith)
exceeds the sum of:
(A) (x) 100% of the aggregate Consolidated EBITDA of
CRBC from the 9-3/8% Notes Issue Date through September 4,
1997, plus 100% of the aggregate Consolidated EBITDA of the
Company from and after the Merger Date (or, in the event that
either such Consolidated EBITDA shall be a deficit, minus 100%
of such deficit), to the most recent date for which financial
information is available to the Company, taken as one
accounting period, less (y) 1.4 times Consolidated Interest
Expense for the same entities and for the same periods, plus
(B) 100% of the aggregate net proceeds, including the
fair market value of property other than cash as determined by
the Board of Directors in good faith, received by the Company
from any Person (other than a Subsidiary of the Company) from
the issuance and sale on or subsequent to the Merger Date of
Qualified Capital Stock of the Company, plus 100% of the
aggregate net proceeds, including the fair market value of
property other than cash as previously determined by the board
of directors of CRBC in good faith, previously received by
CRBC from any Person (other than a Subsidiary of CRBC) from
the issuance and sale on or subsequent to the 9-3/8% Notes
Issue Date of Qualified Capital Stock of CRBC (excluding any
net proceeds from issuances and sales financed directly or
indirectly using funds borrowed from the Company or any
Subsidiary of the Company or from CRBC or any Subsidiary of
CRBC, respectively, until and to the extent such borrowing is
repaid, but including the proceeds from the issuance and sale
of any securities convertible into or exchangeable for
Qualified Capital Stock to the extent such securities are so
converted or exchanged and including any additional proceeds
received by the Company or CRBC, respectively, upon such
conversion or exchange), plus
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(C) without duplication of any amount included in
clause (iii)(B) above, 100% of the aggregate net proceeds,
including the fair market value of property other than cash
(valued as provided in clause (iii)(B) above), received by the
Company as a capital contribution on or subsequent to the
Merger Date, plus 100% of the aggregate net proceeds,
including the fair market value of property other than cash
(valued as provided in clause (iii)(B) above), previously
received by CRBC as a capital contribution on or subsequent to
the 9-3/8% Notes Issue Date (excluding the net proceeds from
one or more Public Equity Offerings by Chancellor Media or
CMHC to the extent used to redeem the Securities on or after
the date of the Indenture).
Notwithstanding the foregoing, the provisions of this Section
4.03 shall not prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if the dividend or
distribution would have been permitted on the date of declaration;
(2) the acquisition of Capital Stock or warrants, options or
other rights to acquire Capital Stock either (i) solely in exchange for shares
of Qualified Capital Stock or warrants, options or other rights to acquire
Qualified Capital Stock, or (ii) through the application of the net proceeds of
a substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities, either (i) solely
in exchange for shares of Qualified Capital Stock (or warrants, options or other
rights to acquire Qualified Capital Stock) or for Indebtedness of the Company
which is subordinate or junior in right of payment to the Securities, at least
to the extent that the Indebtedness being acquired is subordinated to the
Securities and has a Weighted Average Life to Maturity no less than that of the
Indebtedness being acquired or (ii) through the application of the net proceeds
of a substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock (or warrants, options or other
rights to acquire Qualified Capital Stock) or Indebtedness of the Company which
is subordinate or junior in right of payment to the Securities, at least to the
extent that the Indebtedness being acquired is subordinated to the Securities
and has a Weighted Average Life to Maturity no less than that of the
Indebtedness being refinanced;
(4) payments by CRBC to fund the operating expenses of
Chancellor Broadcasting from the 9-3/8% Notes Issue Date through September 4,
1997 and by the Company to fund the operating expenses of CMHC from and after
the Merger Date, in each case in an amount not to exceed $500,000 per annum;
(5) payments by CRBC to Chancellor Broadcasting from the
9-3/8% Notes Issue Date through September 4, 1997 and by the Company to CMHC
from and after the Merger Date, respectively, in each case to make payments
pursuant to (a) the Financial Monitoring and Oversight Agreements or (b) the Tax
Sharing Agreement;
(6) payments by (a) CRBC to repurchase or to enable Chancellor
Broadcasting to repurchase Capital Stock or other securities of Chancellor
Broadcasting from employees of Chancellor Broadcasting or CRBC, in each case,
from the 9-3/8% Notes Issue Date through September 4, 1997, and (b) by the
Company to repurchase or to enable CMHC to repurchase Capital Stock or other
securities of
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CMHC from employees of CMHC or the Company, in each case, after the Merger Date,
in an aggregate amount not to exceed $5,000,000;
(7) payments by CRBC to Chancellor Broadcasting from the
9-3/8% Notes Issue Date through September 4, 1997, or by the Company to CMHC
from and after the Merger Date, in each case, to enable Chancellor Broadcasting
or CMHC, respectively, to redeem or repurchase stock purchase or similar rights
in an aggregate amount not to exceed $500,000;
(8) payments, not to exceed $100,000 in the aggregate, by CRBC
to Chancellor Broadcasting from the 9-3/8% Notes Issue Date through September 4,
1997, together with payments by the Company to CMHC after the Merger Date, in
each case to enable Chancellor Broadcasting or CMHC, respectively, to make cash
payments to holders of its Capital Stock in lieu of the issuance of fractional
shares of its Capital Stock; and
(9) payments made pursuant to any merger, consolidated sale of
assets effected in accordance with Section 5.01; provided, however, that no such
payment may be made pursuant to this clause (9) unless, after giving effect to
such transaction (and the incurrence of any Indebtedness in connection therewith
and the use of the proceeds thereof), the Company would be able to incur $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.12 such that after incurring that $1.00 of additional Indebtedness,
the Leverage Ratio would be less than 5.5 to 1;
provided, however, that in the case of clauses 5(a), (6), (7), (8) and (9), no
Default or Event of Default shall have occurred or be continuing at the time of
such payment or as a result thereof.
In determining the aggregate amount of Restricted Payments
made by the Company on or subsequent to the Merger Date and the aggregate amount
of Restricted Payments made by CRBC subsequent to the 9-3/8% Notes Issue Date
and through September 4, 1997, amounts expended pursuant to clauses (1), (2),
(3) (but only to the extent that Indebtedness is acquired in exchange for, or
with the net proceeds from, the issuance of Qualified Capital Stock or warrants,
options or other rights to acquire Qualified Capital Stock), (5)(a), (6), (7),
(8) and (9) (including any amounts previously expended by CRBC pursuant to
clauses (1), (2), (3) (but only to the extent that Indebtedness is acquired in
exchange for, or with the net proceeds from, the issuance of Qualified Capital
Stock or warrants, options or other rights to acquire Qualified Capital Stock),
(5)(a), (6), (7), (8) and (9) under Section 4.03 of the 9-3/8% Notes Indenture)
shall be included in such calculation.
Prior to any Restricted Payment under the first paragraph of
this Section 4.03, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the computation by which the amount available for
Restricted Payments pursuant to such paragraph was determined. The Trustee shall
have no duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things reasonably necessary to preserve and
keep in full force and effect its corporate or other existence and the corporate
or other existence of each of its Significant Subsidiaries in accordance with
the respective organizational documents of each such Significant Subsidiary and
the material rights (charter and statutory) and franchises of the Company and
each such Significant Subsidiary; provided, however, that the Company shall not
be required to preserve, with respect to itself, any material right or franchise
and,
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with respect to any of its Significant Subsidiaries, any such existence,
material right or franchise, if the Board of Directors of the Company or such
Significant Subsidiary, as the case may be, shall determine that the
preservation thereof is no longer reasonably necessary or desirable in the
conduct of the business of the Company or any such Significant Subsidiary.
SECTION 4.05. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that there shall not be required to be paid or
discharged any such tax, assessment or charge, the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision has been made or where the failure to effect
such payment or discharge is not adverse in any material respect to the Holders.
SECTION 4.06. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall, and shall cause each of its
Subsidiaries to, maintain its material properties in normal condition (subject
to ordinary wear and tear) and make all reasonably necessary repairs, renewals
or replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Subsidiaries;
provided, however, that nothing in this Section 4.06 shall prevent the Company
or any of its Subsidiaries from discontinuing the operation and maintenance of
any of its properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of the Company or the Subsidiary, as the case
may be, no longer reasonably necessary in the conduct of their respective
business.
(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company, are reasonably adequate and appropriate for
the conduct of the business of the Company and such Subsidiaries.
SECTION 4.07. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an Officers' Certificate (signed by
the principal executive officer, principal financial officer or principal
accounting officer) stating that a review of its activities and the activities
of its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether it has
kept, observed, performed and fulfilled its obligations under this Indenture and
further stating, as to each such Officer signing such certificate, that to the
best of his knowledge the Company during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such obligation and no Default
or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
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(b) The copy of the annual report on Form 10-K of the Company
as filed with the SEC or the annual financial statements delivered to the
Trustee pursuant to Section 4.09 shall be accompanied by a written report of the
Company's independent accountants that in conducting their audit of the
financial statements which are a part of such annual report or such annual
financial statements nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article Four, Five or
Six insofar as they relate to accounting matters or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, the Company
shall deliver to the Trustee by registered or certified mail or by telegram or
facsimile transmission followed by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice or other action as soon as
possible and in any event within five Business Days of its becoming aware of
such occurrence.
SECTION 4.08. COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.09. SEC REPORTS.
The Company shall file with the Trustee and provided to the
Securityholders, within 15 days after it files them with the SEC, copies of the
annual reports and of the information, documents, and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. In the event that the Company is no longer required to
furnish such reports to its securityholders pursuant to the Exchange Act, the
Company will cause its consolidated financial statements, comparable to those
which would have been required to appear in annual or quarterly reports, to be
delivered to the Holders of the Securities. The Company shall also comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.10. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the obligations or the performance of this Indenture;
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and (to the extent that it may lawfully do so) the Company hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Neither the Company nor any of its Subsidiaries will, directly
or indirectly enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with or for the benefit of any of its Affiliates
(other than transactions between the Company and a Wholly-Owned Subsidiary of
the Company or among Wholly-Owned Subsidiaries of the Company) (an "AFFILIATE
TRANSACTION"), other than Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an Affiliate;
provided, however, that for a transaction or series of related transactions
involving value of $1,000,000 or more, such determination shall be made in good
faith by a majority of the members of the Board of Directors of the Company and
by a majority of the disinterested members of the Board of Directors of the
Company, if any; provided, further, that for a transaction or series of related
transactions involving value of $5,000,000 or more, the Board of Directors of
the Company has received an opinion from a nationally recognized investment
banking firm that such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Subsidiary. The foregoing restrictions will not
apply to reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder, or to any obligations of the Company under
the Financial Monitoring and Oversight Agreements, the Tax Sharing Agreement or
any employment agreement with any officer of the Company (provided that each
amendment of any of the foregoing agreements shall be subject to the limitations
of this Section 4.11).
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
Neither the Company nor any of its Subsidiaries shall,
directly, or indirectly, create, incur, assume, guarantee, acquire or become
liable for, contingently or otherwise, (collectively "INCUR"), any Indebtedness
other than Permitted Indebtedness. Notwithstanding the foregoing limitations,
the Company or any Subsidiary may incur Indebtedness if on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the
Company's Leverage Ratio is less than 7.0 to 1.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock; (b) make
loans or advances or pay any Indebtedness or other obligation owed to the
Company or any of its Subsidiaries; or (c) transfer any of its property or
assets to the Company, except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law, (2) this Indenture, (3) customary
non-assignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary, (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, (5) agreements permitted under the 9-3/8%
Notes Indenture, the 8-3/4% Notes Indenture, the 10-1/2% Notes Indenture and the
8-1/8% Notes Indenture existing on the Issue Date (including the Credit
Agreement and the Senior Credit Facility, as applicable), as such agreements are
from
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time to time in effect; provided, however, that any amendments or modifications
of such agreements which affect the encumbrances or restrictions of the types
subject to this Section 4.13 shall not result in such encumbrances or
restrictions being less favorable to the Company in any material respect, as
determined in good faith by the Board of Directors of the Company, than the
provisions as in effect before giving effect to the respective amendment or
modification, (6) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4) or (5) above or any other agreement
evidencing Indebtedness permitted under this Indenture; provided, however, that
the provisions relating to such encumbrance or restriction contained in any such
refinancing, replacement or substitution agreement or any such other agreement
are not less favorable to the Company in all material respects as determined in
good faith by the Board of Directors of the Company than the provisions relating
to such encumbrance or restriction contained in agreements referred to in such
clause (2), (4) or (5), or (7) restrictions on the transfer of assets subject to
any Lien permitted under this Indenture imposed by the holder of such Lien.
SECTION 4.14. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not incur or suffer to exist any
Indebtedness that is senior in right of payment to the Securities and is
expressly subordinate in right of payment to any other Indebtedness of the
Company.
SECTION 4.15. CHANGE OF CONTROL.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to repurchase all outstanding Securities pursuant to
the offer described in paragraph (b) below (the "CHANGE OF CONTROL OFFER"), at a
purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of repurchase. Prior to the mailing of the notice
referred to below, but in any event within 30 days following the date on which a
Change of Control occurs, the Company covenants to (i) repay in full all
Indebtedness under the Senior Credit Facility (and terminate all commitments
thereunder) or offer to repay in full all such Indebtedness (and terminate all
such commitments) and to repay the Indebtedness owed to (and terminate the
commitments of) each lender which has accepted such offer or (ii) obtain the
requisite consents under the Senior Credit Facility to permit the repurchase of
the Securities as provided below. The Company shall first comply with the
covenant in the preceding sentence before it shall be required to repurchase
Securities pursuant to the provisions described in this Section 4.15; provided
that the Company's failure to comply with such covenant shall constitute an
Event of Default under Section 6.01(3).
(b) Within 30 days following the date upon which a Change of
Control occurs (the "CHANGE OF CONTROL DATE"), the Company shall send, by first
class mail, a notice to each Holder of Securities, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of Control Offer. Such
notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Securities validly
tendered and not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no
earlier than 30 days nor later than
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45 days from the date such notice is mailed, other than as may
be required by law) (the "CHANGE OF CONTROL PAYMENT DATE");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to
surrender the Security, properly endorsed for transfer
together with such customary documents as the Company
reasonably may request, to the Paying Agent at the address
specified in the notice prior to the close of business on the
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Change of Control Payment Date, a
telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only
in part will be issued new Securities in a principal amount
equal to the unpurchased portion of the Securities
surrendered; and
(8) the circumstances and relevant facts regarding such
Change of Control.
(c) on or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities so tendered and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price out of the funds deposited with the Paying
Agent in accordance with the preceding sentence. The Trustee shall promptly
authenticate and mail to such Holders new Securities equal in principal amount
to any unpurchased portion of the Securities surrendered. Upon the payment of
the purchase price for the Securities accepted for purchase, the Trustee shall
return the Securities purchased to the Company for cancellation. Any amounts
remaining after the purchase of Securities pursuant to a Change of Control Offer
shall be returned by the Trustee to the Company.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the purchase of the Securities pursuant to a Change of Control Offer. To
the extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Change of Control Offer, the Company shall comply with
the provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
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SECTION 4.16. LIMITATION ON ASSET SALES.
(a) Neither the Company nor any of its Subsidiaries will
consummate an Asset Sale unless (i) the Company or the applicable Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed of (as
determined in good faith by management of the Company or, if such Asset Sale
involves consideration in excess of $2,500,000, by the Board of Directors of the
Company, as evidenced by a board resolution), (ii) at least 75% of the
consideration received by the Company or the Subsidiary, as the case may be,
from such Asset Sale is cash or Cash Equivalents (other than in the case where
the Company is exchanging all or substantially all the assets of one or more
broadcast businesses operated by the Company (including by way of the transfer
of the capital stock) for all or substantially all the assets (including by way
of the transfer of the capital stock) constituting one or more broadcast
businesses operated by another Person, in which event the foregoing requirement
with respect to the receipt of cash or Cash Equivalents shall not apply) and is
received at the time of such disposition and (iii) upon the consummation of an
Asset Sale, the Company applies or causes such Subsidiary to apply, such Net
Cash Proceeds within 180 days of receipt thereof either (A) to repay the
principal of any Senior Indebtedness (and, to the extent such Senior
Indebtedness relates to principal under a revolving credit or similar facility,
to obtain a corresponding reduction in the commitments thereunder), (B) to
reinvest, or to be contractually committed to reinvest pursuant to a binding
agreement, in Productive Assets and, in the latter case, to have so reinvested
within 360 days of the date of receipt of such Net Cash Proceeds, or (C) to
purchase Securities (pro rata among the holders of Securities tendered to the
Company for purchase, based upon the aggregate principal amount of the
Securities so tendered) tendered to the Company for purchase at a price equal to
100% of the principal amount thereof, plus accrued interest thereon to the date
of purchase, pursuant to an offer to purchase made by the Company as set forth
below (a "NET PROCEEDS OFFER"); provided, however, that, prior to making any
such Net Proceeds Offer, the Company shall, to the extent required pursuant to
the 9-3/8% Notes Indenture as in effect on the Issue Date, offer to use such Net
Cash Proceeds to repurchase and use all or a portion of such Net Cash Proceeds
to repurchase 9-3/8% Notes and then, to the extent required pursuant to the
8-3/4% Notes Indenture as in effect on the Issue Date, offer to use the
remaining Net Cash Proceeds to repurchase 8-3/4% Notes and then, to the extent
required pursuant to the 10-1/2% Notes Indenture as in effect on the Issue Date,
offer to use the remaining Net Cash Proceeds to repurchase 10-1/2% Notes and
then, to the extent required pursuant to the 8-1/8% Notes Indenture as in effect
on the Issue Date, offer to use the remaining Net Cash Proceeds to repurchase
8-1/8% Notes; in which event the Company shall be required to use only the Net
Cash Proceeds remaining after such repurchases to make the Net Proceeds Offer
contemplated by this Section 4.16; provided, further, that if at any time any
non-cash consideration received by the Company or any Subsidiary of the Company,
as the case may be, in connection with any Asset Sale is converted into or sold
or otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with clause (iii) above; provided, further that
the Company may defer making a Net Proceeds Offer until the aggregate Net Cash
Proceeds from Asset Sales (taking into account any Net Cash Proceeds used to
repurchase 9-3/8% Notes, 8-3/4% Notes, 10-1/2% Notes and 8-1/8% Notes pursuant
to the second immediately preceding proviso) to be applied equals or exceeds
$5,000,000. In the event of a transaction effected in accordance with Section
5.01 which involves less than all of the property or assets of the Company, only
property or assets not included in such transaction shall be deemed to have been
transferred in an Asset Sale.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds Offer pursuant to this
Section 4.16 shall be mailed, by first class mail, by the Company to Holders of
the Securities as shown on the applicable register of Holders of the Securities
not more than 180 days after the relevant Asset Sale or, in the event the
Company or a Subsidiary has entered
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into a binding agreement as provided in (B) above, within 180 days following the
termination of such agreement but in no event later than 360 days after the
relevant Asset Sale, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.16 and that Holders of Securities may elect to
tender their Securities in denominations of less than $1,000
and that all Securities validly tendered will be accepted for
payment; provided, however, that if the aggregate principal
amount of Securities tendered in a Net Proceeds Offer plus
accrued interest at the expiration of such offer exceeds the
aggregate amount of the Net Proceeds Offer, the Company shall
select the Securities to be purchased on a pro rata basis
(based upon the principal amount tendered);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier
than 30 days nor later than 45 days from the date such notice
is mailed, other than as may be required by law) (the
"PROCEEDS PURCHASE DATE");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the
Net Proceeds Offer shall cease to accrue interest after the
Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender
the Security, properly endorsed for transfer together with
such other customary documents as the Company reasonably may
request, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day
prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Proceeds Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in
part will be issued new Securities in a principal amount equal
to the unpurchased portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such
Net Proceeds Offer.
(c) On or before the Proceeds Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof validly tendered pursuant
to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and
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(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price out of funds deposited
with the Paying Agent in accordance with the preceding sentence. The Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered. Upon
payment of the purchase price for the Securities accepted for purchase, the
Trustee shall return the Securities purchased to the Company for cancellation.
Any Securities not so accepted shall be promptly mailed by the Company to the
Holder thereof.
(d) If the aggregate principal amount of Securities validly
tendered pursuant to any Net Proceeds Offer is less than the amount of Net Cash
Proceeds subject to such Net Proceeds Offer, the Company may use any remaining
portion of such Net Cash Proceeds not required to fund the repurchase of
tendered Securities for purposes otherwise permitted by this Indenture. Upon the
consummation of any Net Proceeds Offer, the amount of Net Cash Proceeds subject
to any future Net Proceeds Offer from the Asset Sales giving rise to such Net
Cash Proceeds shall be deemed to be zero.
(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with their purchase of Securities pursuant to a Net Proceeds Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Net Proceeds Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Net Proceeds Offer by virtue thereof.
SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not permit any of its Subsidiaries to issue
any Preferred Stock (other than to the Company or to a Wholly-Owned Subsidiary
of the Company) or permit any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company) to own any Preferred Stock of a Subsidiary (other
than Acquired Preferred Stock; provided that at the time the issuer of such
Acquired Preferred Stock becomes a Subsidiary of the Company or merges with the
Company or any of its Subsidiaries, and after giving effect to such transaction,
the Company shall be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12).
SECTION 4.18. LIMITATION ON LIENS.
Neither the Company nor any of its Subsidiaries shall create,
incur, assume or suffer to exist any Liens upon any of their respective assets,
except for (a) Permitted Liens, (b) Liens to secure Senior Indebtedness or
guarantees thereof permitted under this Indenture, (c) Liens permitted under the
9-3/8% Notes Indenture, the 8-3/4% Notes Indenture, the 10-1/2% Notes Indenture
and the 8-1/8% Notes Indenture existing on the Issue Date, (d) Liens in favor of
the Trustee, (e) Liens to secure Guarantor Senior Indebtedness permitted under
this Indenture and (f) any Lien to secure the replacement, refunding, extension
or renewal, in whole or in part, of any Indebtedness described in the foregoing
clauses; provided that, to the extent any such clause limits the amount secured
or the asset subject to such Liens, no extension or renewal will increase the
assets subject to such Liens or the amount secured thereby beyond the assets or
amounts set forth in such clauses.
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SECTION 4.19. GUARANTEES OF CERTAIN INDEBTEDNESS.
The Company shall not permit any of its Subsidiaries, directly
or indirectly, to incur, guarantee or secure through the granting of Liens, the
payment of any Indebtedness under the Senior Credit Facility or any refunding or
refinancing thereof, in each case, unless such Subsidiary, the Company and the
Trustee execute and deliver a supplemental indenture pursuant to which such
Subsidiary becomes a Guarantor of the Securities and which evidences such
Subsidiary's Guarantee of the Securities, such Guarantee to be a senior
subordinated unsecured obligation of such Subsidiary. Neither the Company nor
any such Guarantor shall be required to make a notation on the Securities or its
Guarantee to reflect any such subsequent Guarantee. Nothing in this Section 4.19
shall be construed to permit any Subsidiary of the Company to incur Indebtedness
otherwise prohibited by Section 4.12.
SECTION 4.20. LIMITATION ON SALE AND LEASEBACK TRANSACTION.
Neither the Company nor any of its Subsidiaries shall enter
into any Sale and Leaseback Transaction, except that the Company or any
Subsidiary may enter into a Sale and Leaseback Transaction if, immediately prior
thereto, and after giving effect to such Sale and Leaseback Transaction (the
Indebtedness thereunder being equivalent to the Attributable Value thereof) the
Company could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12.
SECTION 4.21. LIMITATION ON LINE OF BUSINESS.
For so long as any Securities are outstanding, the Company and
its Subsidiaries shall engage solely in the ownership and operation of broadcast
businesses or businesses related thereto, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or related thereto.
SECTION 4.22. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall engage
in any Asset Swaps, unless: (i) at the time of entering into the agreement to
swap assets and immediately after giving effect to the proposed Asset Swap, no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; (ii) the Company would, after giving pro forma effect
to the proposed Asset Swap, have been permitted to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2,500,000 by the Board of Directors, as evidenced by
a Board Resolution delivered to the Trustee) are substantially the same at the
time of entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company, calculated from the
time the agreement to swap assets was entered into; provided, however, that this
Section 4.22 shall not apply to any of the Pending Transactions.
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ARTICLE 5.
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
(a) The Company shall not, in a single transaction or through
a series of related transactions, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another Person or adopt a plan of
liquidation, unless:
(1) either (A) the Company shall be the survivor of such
merger or consolidation or (B) the surviving or transferee
Person is a corporation, partnership or trust organized and
existing under the laws of the United States, any State
thereof or the District of Columbia and such surviving or
transferee Person shall expressly assume by supplemental
indenture all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such transaction
and the use of the proceeds therefrom (on a pro forma basis,
including any Indebtedness incurred or anticipated to be
incurred in connection with such transaction), the Company or
the surviving or transferee Person is able to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12;
(3) immediately after giving effect to such transaction
(including any Indebtedness incurred or anticipated to be
incurred in connection with the transaction) no Default or
Event of Default shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this
Indenture, that the surviving or transferee Person agrees by
supplemental indenture to be bound hereby, and that all
conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one or
more Subsidiaries, the Capital Stock of which constitutes all or substantially
all of the properties and assets of the Company, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Securities
and agrees to be bound hereby and thereby, the predecessor shall be released
from such obligations.
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ARTICLE 6.
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the Default continues for a
period of 30 days (whether or not such payment shall be prohibited by Article
Ten); or
(2) the Company defaults in the payment of the principal of
any Securities when the same becomes due and payable, at maturity, upon
redemption or otherwise (whether or not such payment shall be prohibited by
Article Ten); or
(3) the Company fails to observe or perform any other covenant
or agreement contained in the Securities or this Indenture and the Default
continues for a period of 30 days after written notice thereof specifying such
Default has been given to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Securities; or
(4) there shall be a failure to pay at the final stated
maturity (giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Subsidiary of the Company, or the
acceleration of the final stated maturity (giving effect to any extensions
thereof) of any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final stated
maturity (giving effect to any extensions thereof) or which has been
accelerated, aggregates $5,000,000 or more at any time, in each case after a
10-day period during which such default shall not have been cured or such
acceleration rescinded; or
(5) one or more judgments in an aggregate amount in excess of
$5,000,000 (which are not covered by insurance as to which the insurer has not
disclaimed coverage) shall have been rendered against the Company or any of its
Significant Subsidiaries and such judgments remain undischarged or unstayed for
a period of 60 days after such judgment or judgments become final and
non-appealable; or
(6) The Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(B) consents to the entry of a judgment, decree or order for relief against it
in an involuntary case or proceeding under any Bankruptcy Law, (C) consents to
the appointment of a Custodian of it or for substantially all of its property,
(D) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it or (E) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law, which
shall (A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
Significant Subsidiary, (B) appoint a Custodian of the Company or any
Significant Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive days.
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SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7) with respect to the Company) occurs and is
continuing and has not been waived pursuant to Section 6.04, the Trustee may, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by written notice to the Company
and the Trustee, and the Trustee shall, upon the request of such Holders,
declare the aggregate principal amount of the Securities outstanding, together
with accrued but unpaid interest, if any, on all Securities to be due and
payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"ACCELERATION NOTICE"), and the same (i) shall become immediately due and
payable or (ii) if there are any amounts outstanding under the Credit Agreement
or Senior Credit Facility, as applicable, shall become due and payable upon the
first to occur of an acceleration under the Credit Agreement or Senior Credit
Facility, as applicable, or five Business Days after receipt by the Company and
the Representative under the Credit Agreement or Senior Credit Facility, as
applicable, of such Acceleration Notice (unless all Events of Default specified
in such Acceleration Notice have been cured or waived). If an Event of Default
specified in Section 6.01(6) or (7) occurs and is continuing with respect to the
Company, all unpaid principal and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
The Holders of a majority in principal amount of the Securities then outstanding
(by notice to the Trustee) may rescind and cancel a declaration of acceleration
and its consequences if (i) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction, (ii) all existing Events of
Default have been cured or waived, except non-payment of the principal or
interest on the Securities which have become due solely by such declaration of
acceleration, (iii) to the extent the payment of such interest is lawful,
interest (at the same rate as specified in the Securities) on overdue
installments of interest and overdue payments of principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (iv) the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (v) in the event of the
cure or waiver of a Default or Event of Default of the type described in
Sections 6.01(6) and (7), the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Default or Event of Default has
been cured or waived and the Trustee shall be entitled to conclusively rely upon
such Officers' Certificate and Opinion of Counsel. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its
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consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (1) and (2) of Section 6.01.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it, including, without limitation, any remedies provided for
in Section 6.03. Subject to Section 7.01, however, the Trustee may, in its
discretion, refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee, in its discretion, which is not inconsistent with such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holders offer to the Trustee reasonably satisfactory
to the Trustee indemnity or security against any loss, liability or expense to
be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of satisfactory indemnity or
security; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the
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extent that payment of such interest is lawful, interest on overdue installments
of interest at the rate set forth in the Securities and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property, and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Sections 6.09 and
7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively;
and
Fourth: to the Company or any other obligor on the Securities,
as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its
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discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in the
conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no
duties, covenants, responsibilities or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates (including Officers' Certificates) or opinions
(including Opinions of Counsel) furnished to the Trustee and
conforming to the requirements of this Indenture. However, as
to any certificates or opinions which are required by any
provision of this Indenture to be delivered or provided to the
Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.02, 6.04
or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability or
the performance of any of its duties hereunder or in the
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exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment indemnity against such risk or of such funds or
adequate ability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
(g) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall not be responsible for
the application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. RIGHTS OF TRUSTEES.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.04 and 13.05. The Trustee shall not
be liable for and shall be fully protected in respect of any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any Opinion of
Counsel), notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of the Securities pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred by it in compliance with such request, order or direction.
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(g) The Trustee may consult with counsel of its selection and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability with respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, any
Subsidiary or Unrestricted Subsidiary, or their respective Affiliates, with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, and it shall not be accountable
for the Company's use of the proceeds from the Securities, and the recitals
contained herein and in the Securities shall be taken as the statements of the
Company and the Trustee shall not be responsible for any statement of the
Company in this Indenture or the Securities other than the Trustee's certificate
of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each
Securityholder, as their name and address appears in the security register,
notice of the uncured Default or Event of Default within 60 days after such
Default or Event of Default occurs. Except in the case of a Default or an Event
of Default in payment of principal of, or interest on, any Security, including
an accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer and, except in the case of a failure to
comply with Article Five, the Trustee may withhold the notice if and so long as
its Board of Directors, the executive .committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Securityholders. The Trustee
shall not be deemed to have knowledge of a Default or Event of Default other
than (i) any Event of Default occurring pursuant to Section 6.01(l) or 6.01(2)
or (ii) any Default or Event of Default of which a Trust Officer shall have
received written notification and such notice references the Securities and the
Indenture or obtained actual knowledge.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 of each year beginning with
May 15, 1999, the Trustee shall, to the extent that any of the events described
in TIA Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Securityholder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313 (b) and 313 (c)
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee if the
Securities become listed on any stock exchange and the Trustee shall comply with
TIA Section 313(d).
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon in writing by the Company and the Trustee.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by it in connection with the performance of its duties and the
discharge of its obligations under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless
against, any and all loss, liability, damage, claim or expense incurred by them
except for such actions to the extent caused by any negligence, bad faith or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their rights, powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided that the Company will not be required to pay such fees
and expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all assets or
money held or collected by the Trustee, in its capacity as Trustee, except
assets or money held in trust to pay principal of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and
the compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
The provisions of this Section 7.07 shall survive termination
of this Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Company and the Trustee and may appoint a
successor trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor
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Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
expense of the Company), the Company or the Holders of at least 10% in principal
amount of the outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Sections 310(a)(2). The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company and any other obligor of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein. The provisions of TIA Section 311 shall apply to the Company
and any other obligor of the Securities.
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ARTICLE 8.
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect and the
obligations of the Company under the Securities and this Indenture shall
terminate (except that the obligations under Sections 7.07, 8.04 and 8.05 shall
survive the effect of this Article Eight) when all outstanding Securities
theretofore authenticated and issued have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder.
In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged from any and all obligations with
respect to the Securities (except for certain obligations of the Company to
register the transfer or exchange of such Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold moneys for payment in
trust) after the applicable conditions set forth below have been satisfied or
(b) the Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Article Four (except that the Company's
obligations under Sections 4.01 and 4.02 shall survive) and Section 5.01 after
the applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Securities U.S. Legal Tender or U.S. Government Obligations or a combination
thereof which, through the payment of interest thereon and principal in respect
thereof in accordance with their terms, will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay all the principal
of and interest on the Securities on the dates such installments of interest or
principal are due in accordance with the terms of such Securities, as well as
the Trustee's fees and expenses; provided that no deposits made pursuant to this
Section 8.01(l) shall cause the Trustee to have a conflicting interest as
defined in and for purposes of the TIA; provided, further, that from and after
the time of deposit, the Funds deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the provisions of Article Ten; and
provided, further, that, as confirmed by an Opinion of Counsel, no such deposit
shall result in the Company, the Trustee or the trust becoming or being deemed
to be an "investment company" under the Investment Company Act of 1940;
(2) The Company shall have delivered to the Trustee an Opinion
of Counsel or a private letter ruling issued to the Company by the IRS to the
effect that the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of the deposit and related
defeasance and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such option
had not been exercised and, in the case of an Opinion of Counsel furnished in
connection with a Discharge pursuant to the foregoing, accompanied by a private
letter ruling issued to the Company by the IRS to such effect;
(3) No Event of Default or Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit
after giving effect to such deposit;
(4) The Company shall have delivered to the Trustee an Opinion
of Counsel, subject to certain qualifications, to the effect that (i) the Funds
will not be subject to any rights of any other holders
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of Indebtedness of the Company, and (ii) the Funds so deposited will not be
subject to avoidance under applicable Bankruptcy Law;
(5) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07;
(6) No such deposit will result in a Default under this
Indenture or a breach or violation of, or constitute a default under, any other
instrument or agreement (including, without limitation, the Senior Credit
Facility) to which the Company or any of its Subsidiaries is a party or by which
it or its property is bound; and
(7) An Officers' Certificate and an Opinion of Counsel to the
effect that all conditions precedent to the defeasance have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required
by subparagraph 2 above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the Maturity Date within one year, or (iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
"DISCHARGED" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities and to have satisfied all the obligations under this
Indenture relating to the Securities (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same upon compliance
by the Company with the provisions of this Section), except (i) the rights of
the Holders of Securities to receive, from the trust fund described in clause
(1) above, payment of the principal of and the interest on such Securities when
such payments are due, (ii) the Company's obligations with respect to the
Securities under Sections 2.03 through 2.07, 7.07 and 7.08 and (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
"FUNDS" means the aggregate amount of U.S. Legal Tender and/or
U.S. Government Obligations deposited with the Trustee pursuant to this Article
Eight.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
SECTION 8.02. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.05, after (i) the conditions of Section
8.01, have been satisfied and (ii) the Company has delivered to the Trustee an
Opinion of Counsel, stating that all conditions precedent referred to in clause
(i) above relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee upon written request of the Company shall acknowledge
in writing the discharge of the Company's obligations under this Indenture
except for those surviving obligations specified in this Article Eight.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust Funds deposited with it
pursuant to Section 8.01. It shall apply the Funds through the Paying Agent and
in accordance with this Indenture to the payment of principal and accrued and
unpaid interest on the Securities. The Company shall pay and indemnify the
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Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 8.01 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
SECTION 8.04. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company, upon the Company's written request, any Funds held by them for the
payment of principal or interest that remains unclaimed for one year; provided,
however, that the Trustee or such Paying Agent may, at the expense of the
Company, cause to be published once in a newspaper of general circulation in the
City of New York or mailed to each Holder, notice that such Funds remain
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such Funds then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to the Funds must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person and all liability of the Trustee and Paying Agent with respect to such
Funds shall cease.
SECTION 8.05. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Funds by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such Funds in accordance with Section 8.01; provided,
however, that if the Company has made any payment of interest on or principal of
any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from Funds held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDER.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; or
(4) to make any other change that does not adversely affect in
any material respect the rights of any Securityholders hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, when authorized by a
Board Resolution, and the Trustee, together, with the written consent of the
Holder or Holders of at least a majority in principal amount of the outstanding
Securities may amend or supplement this Indenture or the Securities, without
notice to any other Securityholders. Subject to Sections 6.04 and 6.07, the
Holder or Holders of a majority in aggregate principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any other Securityholder. No
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
shall, directly or indirectly, without the consent of each Holder of each
Security affected thereby:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Securities;
(3) reduce the principal of or change the fixed maturity of
any Securities, or change the date on which any Securities may be subject to
redemption or repurchase, or reduce the redemption or repurchase price therefor;
(4) make any Securities payable in money other than that
stated in the Securities;
(5) make any change in provisions of this Indenture protecting
the right of each Holder of a Security to receive payment of principal of and
interest on such Security on or after the due date thereof or to bring suit to
enforce such payment or permitting Holders of a majority in principal amount of
Securities to waive Defaults or Events of Default; or
(6) after the Company's obligation to purchase the Securities
arises under Section 4.15 or 4.16, amend, modify or change the obligation of the
Company to consummate a Change of Control Offer or a Net Proceeds Offer or waive
any default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective (as provided in Section 9.04), the Company shall mail to
the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of his
Security by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver (at
which time such amendment, supplement or waiver shall become effective).
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (6) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such
Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
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ARTICLE 10.
SUBORDINATION OF SECURITIES
SECTION 10.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees and the Trustee and each
Holder of the Securities, by its acceptance thereof, likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article Ten; and the Trustee and each Person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts and
agrees that the payment of all Obligations on the Securities (except for the
payment of fees and expenses of the Trustee and any indemnity under Section
7.07) by the Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents (or such payment shall be duly provided for to the
satisfaction of the holders of the Senior Indebtedness) of all Obligations on
the Senior Indebtedness; that the subordination is for the benefit of, and shall
be enforceable directly by, the holders of Senior Indebtedness, and that each
holder of Senior Indebtedness whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Senior
Indebtedness in reliance upon the covenants and provisions contained in this
Indenture and the Securities.
SECTION 10.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or otherwise,
of any principal of, interest on or any other amounts owing with respect to any
Senior Indebtedness, no payment of any kind or character (except (i) in
Qualified Capital Stock issued by the Company to pay interest on the Securities
or issued in exchange for the Securities, (ii) in securities substantially
identical to the Securities issued by the Company in payment of interest accrued
thereon or (iii) in securities issued by the Company which are subordinated to
the Senior Indebtedness at least to the same extent as the Securities and having
a Weighted Average Life to Maturity at least equal to the remaining Weighted
Average Life to Maturity of the Securities (the issuance of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of Senior Indebtedness consisting of each class of Designated
Senior Indebtedness then outstanding, which subordinated securities shall be
issued in exchange for outstanding Securities or to pay interest accrued on
outstanding Securities)) shall be made by the Company or any other Person on
behalf of the Company with respect to any Obligations on the Securities or to
acquire any of the Securities for cash or property or otherwise. In addition, if
any other event of default occurs and is continuing (or if such an event of
default would occur upon any payment with respect to the Securities or would
arise upon the passage of time as a result of such payment) with respect to any
Designated Senior Indebtedness (as such event of default is defined in the
instrument creating or evidencing such Designated Senior Indebtedness) and such
event of default permits the holders of such Designated Senior Indebtedness then
outstanding to accelerate the maturity thereof and if the Representative for the
respective issue of Designated Senior Indebtedness gives written notice of the
event of default to the Company and the Trustee (a "DEFAULT Notice"), then,
unless and until all events of default have been cured or waived or have ceased
to exist or the Company and the Trustee receive notice from the Representative
for the respective issue of Designated Senior Indebtedness terminating the
Blockage Period (as defined below), during the 180 days after the delivery of
such Default Notice (the "BLOCKAGE PERIOD"), neither the Company nor any other
Person on behalf of the Company shall make any payment of any kind or character
(except (i) in Qualified Capital Stock issued by the Company to pay interest on
the Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company in payment of
interest accrued thereon or (iii) in securities issued by the Company which are
subordinated to the Senior Indebtedness at least to the same extent as the
Securities and having a Weighted Average Life to Maturity at least equal to the
remaining Weighted
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Average Life to Maturity of the Securities (the issuance of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of Senior Indebtedness consisting of each class of Designated
Senior Indebtedness then outstanding, which subordinated securities shall be
issued in exchange for outstanding Securities or to pay interest accrued on
outstanding Securities)) with respect to any Obligations on the Securities or to
acquire any of the Securities for cash or property or otherwise. Notwithstanding
anything herein to the contrary, in no event will a Blockage Period extend
beyond 180 days from the date the payment on the Securities was due and only one
such Blockage Period may be commenced within any 360 consecutive days. For all
purposes of this Section 10.02(a), no event of default which existed or was
continuing on the date of the commencement of any Blockage Period with respect
to the Designated Senior Indebtedness initiating such Blockage Period shall be,
or be made, the basis for the commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provision under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 10.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amount of
Senior Indebtedness held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Senior Indebtedness,
if any, received from the holders of Senior Indebtedness (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Company and only amounts included in the
information provided to the Trustee shall be paid to the holders of Senior
Indebtedness.
Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided, that all Senior Indebtedness thereafter due or
declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment with respect to
Obligations on the Securities.
SECTION 10.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshalling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to the Company or its property, whether voluntary or involuntary, all
Obligations due or to become due upon all Senior Indebtedness shall first be
paid in full in cash or Cash Equivalents, or such payment duly provided for to
the satisfaction of the holders of the Senior Indebtedness, before any payment
or distribution of any kind or character is made on account of any Obligations
on the Securities, or for the acquisition of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee under this
Indenture would be entitled (other than any payments of fees and expenses of the
Trustee and any indemnity made under Section 7.07), except for the provisions
hereof, shall be paid by the
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Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them, directly
to the holders of Senior Indebtedness (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether
by or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 10.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amount of Senior Indebtedness by such holders) or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the payment
of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has
been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of all or substantially all
of its assets, to another corporation upon the terms and conditions provided in
Article Five and as long as permitted under the terms of the Senior Indebtedness
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five.
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 10.02 and 10.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence
of actual knowledge by the Trustee that a given payment would be prohibited by
Section 10.02 or 10.03, the application by the Trustee of any moneys deposited
with it for the purpose of making such payments of principal of, and interest
on, the Securities to the Holders entitled thereto unless at least one Business
Day prior to the date upon which such payment would otherwise become due and
payable, the Trustee shall have received the
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written notice provided for in Section 10.02(a) or in Section 10.07. The Company
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
SECTION 10.05. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of
all Senior Indebtedness, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Senior Indebtedness by or on behalf of the Company or by or on behalf of
the Holders by virtue of this Article Ten which otherwise would have been made
to the Holders shall, as between the Company and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article Ten are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and any
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on its behalf from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
SECTION 10.07. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities pursuant to the provisions of
this Article Ten. Regardless of anything to the contrary contained in this
Article Ten or elsewhere in this Indenture, the Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Indebtedness or of any other facts which would prohibit the making
of any payment to or by the Trustee unless and until the Trust Officer of the
Trustee shall have received notice in writing from the Company, or from a holder
of Senior Indebtedness or a Representative therefor, and, prior to the receipt
of any such written notice, the Trustee shall be entitled to assume (in the
absence of actual knowledge to the contrary) that no such facts exist; provided,
however, that if a Trust Officer of the Trustee shall not have received, at
least three Business Days prior to the date upon which, by the terms hereof, any
such money may become payable for any purpose (including, without limitation,
the payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, in respect of any Security), the notice
with respect to such money provided for in this Section 10.07, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
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In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Ten, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or the Holders of the Securities, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee or any such agent of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
Ten, and no implied duties, covenants, responsibilities or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Indebtedness, the distribution may be made and the
notice may be given to their Representative, if any.
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
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Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Securities to the holders of the
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness, or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the payment or
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
SECTION 10.11. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION
OF SECURITIES.
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Indebtedness and the Holders of Securities, the subordination
provided in this Article Ten, and appoints the Trustee such Holder's
attorney-in-fact to act for and on behalf of each such Holder of Securities for
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the filing of a claim for the unpaid balance
of its Securities and accrued interest in the form required in those
proceedings.
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Ten will
not be construed as preventing the occurrence of an Event of Default.
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE 11.
GUARANTEES OF THE SECURITIES
SECTION 11.01. GUARANTEES.
Subject to the provisions of this Article Eleven, each
Guarantor hereby jointly and severally unconditionally guarantees to each Holder
of a Security authenticated and made available for delivery by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company or any other Guarantors to the Holders or the Trustee hereunder, that:
(a) the principal of and interest on the Securities will be duly and punctually
paid in full when due, whether at maturity, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law) interest,
if any, on the Securities and all other Obligations on the Securities will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Securities or any
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of such other Obligations on the Securities, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at final stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, for whatever reason, each
Guarantor will be obligated to pay the same immediately. An Event of Default
under this Indenture or the Securities shall constitute an event of default
under the Guarantees, and shall entitle the Holders of Securities to accelerate
the obligations of the Guarantors hereunder in the same manner and to the same
extent as the Obligations of the Company on the Securities.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularly or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor,
the recovery of any judgment against the Company, any action to enforce the
same, whether or not a Guarantee is affixed to any particular Security, or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Guarantors hereby waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and the Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or such Guarantor, any amount paid by the Company or such Guarantor
to the Trustee or such Holder, the Guarantees, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between it, on the one hand, and the Holders of Securities and
the Trustee, on the other hand, (a) subject to this Article Eleven, the maturity
of the obligations guaranteed hereby may be accelerated as provided in Section
6.02 for the purposes of the Guarantees, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Section 6.02, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the
Guarantees.
The Guarantees shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities
are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator,
past, present or future, of any Guarantor, as such, shall have any personal
liability under the Guarantees by reason of his, her or its status as such
stockholder, officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantees.
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Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that in no event
shall any Guarantor's obligations under its Guarantee be subject to avoidance
under any applicable fraudulent conveyance or similar law of any relevant
jurisdiction. Therefore, in the event that the Guarantees would, but for this
sentence, be subject to avoidance, then the liability of the Guarantors under
the Guarantees shall be reduced to the extent necessary such that such
Guarantees shall not be subject to avoidance under the applicable fraudulent
conveyance or similar law. Subject to the preceding limitation on liability, the
Guarantee of each Guarantor constitutes a guarantee of payment in full when due
and not merely a guarantee of collectability.
SECTION 11.02. EXECUTION AND DELIVERY OF THE GUARANTEES.
To further evidence the Guarantees set forth in Section 11.01,
each Guarantor hereby agrees that a notation of such Guarantees, substantially
in the form included in Exhibit A-1 and Exhibit A-2 hereto, shall be endorsed on
each Security authenticated and made available for delivery by the Trustee. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Guarantor's
Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 11.03. ADDITIONAL GUARANTORS.
Any Person may become a Guarantor by executing and delivering
to the Trustee (a) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions of this Indenture
as a Guarantor, and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning fraudulent conveyance laws,
creditors' rights and equitable principles as may be acceptable to the Trustee
in its discretion)
SECTION 11.04. LIMITATION OF GUARANTORS' LIABILITY.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees
under the Senior Credit Facility) and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
11.06, result in the obligations of such Guarantor under the Guarantees not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under the
Guarantees shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
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SECTION 11.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor, as an entirety or substantially as an entirety, to the
Company or another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any force
or effect.
(b) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or into
a Person (provided such Person is a corporation, partnership or trust) other
than the Company or another Guarantor or shall prevent any sale or conveyance of
the property of a Guarantor as an entirety or substantially as an entirety to
any such Person (whether or not an Affiliate of the Guarantor). Upon the sale or
disposition of a Guarantor (or all or substantially all of its assets) to a
Person which is not a Subsidiary of the Company, which is otherwise in
compliance with this Indenture (including Section 4.16), such Guarantor shall be
deemed released from all its obligations under this Indenture and its Guarantee
and such Guarantee shall terminate; provided, however, that any such termination
shall occur only to the extent that all obligations of such Guarantor under the
Senior Credit Facility, and all its guarantees of, and under all of its pledges
of assets or other security interests which secure, Indebtedness of the Company
shall also terminate upon such release, sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 11.05. Any Guarantor not so released remains liable for the
full amount of principal and interest on the Securities as provided in this
Article Eleven.
SECTION 11.06. CONTRIBUTION.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter alia, that in the event any payment
or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees; provided that such Funding Guarantor's
contribution right with respect to any such Guarantor shall be subordinated in
right of payment to such Guarantor's Guarantor Senior Indebtedness on the same
basis as its Guarantee is subordinated to Guarantor Senior Indebtedness pursuant
to Article Twelve.
SECTION 11.07. WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under the Guarantees and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration or
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full,
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such amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Securities,
and shall, subject to the provisions of Article Twelve, forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct or indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 11.07 is knowingly made in contemplation of
such benefits.
ARTICLE 12.
SUBORDINATION OF GUARANTEES
SECTION 12.01. GUARANTEE OBLIGATIONS SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS.
Each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities, by its acceptance thereof, likewise covenants and
agrees, that all Guarantees shall be issued subject to the provisions of this
Article Twelve; and the Trustee and each Person holding any Guarantee, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees that the payment of all Obligations on the Securities pursuant to the
Guarantees (except for the payment of fees and expenses of the Trustee under
Section 7.07) made by or on behalf of such Guarantor shall, to the extent and in
the manner herein set forth, be subordinated and junior in right of payment to
the prior payment in full in cash or Cash Equivalents (or such payment shall be
duly provided for to the satisfaction of the holders of the Guarantor Senior
Indebtedness of any Guarantor) of all existing and future Obligations on the
Guarantor Senior Indebtedness of such Guarantor; that the subordination is for
the benefit of, and shall be enforceable directly by the holders of Guarantor
Senior Indebtedness of any Guarantor and that each holder of Guarantor Senior
Indebtedness of any Guarantor whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Guarantor
Senior Indebtedness of any Guarantor in reliance upon the covenants and
provisions contained in this Indenture and the Guarantees.
This Section 12.01 and the following Sections 12.02 through
12.15 of this Article Twelve shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Guarantor Senior Indebtedness of any Guarantor and, to the extent set forth in
this Section 12.02, holders of Designated Guarantor Senior Indebtedness; and
such provisions are made for the benefit of the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in Section 12.02,
holders of Designated Guarantor Senior Indebtedness; and such holders (to such
extent) are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 12.02. NO PAYMENT ON GUARANTEES IN CERTAIN CIRCUMSTANCES.
(a) If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or otherwise,
of any principal of, interest on or any other amounts owing with respect to any
Guarantor Senior Indebtedness, no payment of any kind or character (except (i)
in Qualified Capital Stock issued by the Company to pay interest on the
Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company and guaranteed
by the Guarantors on the same basis as provided in the Guarantees in payment of
interest accrued on the Securities or (iii) in securities issued by the Company
and guaranteed by the Guarantors which securities and guarantees thereof are
subordinated to the Guarantor Senior Indebtedness at least to the same extent as
the Guarantees and having a Weighted Average Life to Maturity at least equal to
the remaining Weighted Average Life to Maturity of the Securities (the issuance
of any such guarantee in respect of such subordinated securities to be consented
to by the holders of at least a majority, of the
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outstanding amount of Guarantor Senior Indebtedness consisting of each class of
Designated Guarantor Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or to pay
interest accrued on outstanding Securities)) shall be made by any Guarantor or
any other Person on behalf of such Guarantor with respect to any Obligations on
the Securities or under the Guarantees or to acquire any of the Securities for
cash or property or otherwise. In addition, if any other event of default occurs
and is continuing (or if such an event of default would occur upon any payment
with respect to the Securities or would arise upon the passage of time as a
result of such payment) with respect to any Designated Guarantor Senior
Indebtedness (as such event of default is defined in the instrument creating or
evidencing such Designated Guarantor Senior Indebtedness) and such event of
default permits the holders of such Designated Guarantor Senior Indebtedness
then outstanding to accelerate the maturity thereof and if the Representative
for the respective issue of Designated Guarantor Senior Indebtedness gives a
Default Notice to the Company, the Guarantors and the Trustee, then, unless and
until all events of default have been cured or waived or have ceased to exist or
the Company, the Guarantors and the Trustee receive notice from the
Representative for the respective issue of Designated Guarantor Senior
Indebtedness terminating the Blockage Period, neither the Guarantors nor any
other Person on behalf of the Guarantors shall make any payment of any kind or
character (except (i) in Qualified Capital Stock issued by the Company to pay
interest on the Securities or issued in exchange for the Securities, (ii) in
securities substantially identical to the Securities issued by the Company and
guaranteed by the Guarantors on the same basis as provided in the Guarantees in
payment of interest accrued thereon or (iii) in securities issued by the Company
and guaranteed by the Guarantors which securities and guarantees thereof are
subordinated to the Guarantor Senior Indebtedness at least to the same extent as
the Guarantees and having a Weighted Average Life to Maturity at least equal to
the remaining Weighted Average Life to Maturity of the Securities (the issuance
of any such guarantee in respect of such subordinated securities to be consented
to by the holders of at least a majority of the outstanding amount of Guarantor
Senior Indebtedness consisting of each class of Designated Guarantor Senior
Indebtedness then outstanding, which subordinated securities shall be issued in
exchange for outstanding Securities or to pay interest accrued on outstanding
Securities) with respect to any Obligations of a Guarantor on the Securities or
under the Guarantees or to acquire any of the Securities for cash or property or
otherwise. Notwithstanding anything herein to the contrary, in no event will a
Blockage Period extend beyond 180 days from the date the payment on the
Securities was due and only one such Blockage Period may be commenced within any
360 consecutive days. For all purposes of this Section 12.02(a), no event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Guarantor Senior Indebtedness
initiating such Blockage Period shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative of such
Designated Guarantor Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days (it being acknowledged that
any subsequent action, or any breach of any financial covenants for a period
commencing after the date of commencement of such Blockage Period that in either
case, would give rise to an event of default pursuant to any provision under
which an event of default previously existed or was continuing shall constitute
a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder of a Guarantee when such
payment is prohibited by Section 12.02(a), such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Guarantor Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Indebtedness held by such holders) or
their respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the Guarantor Senior Indebtedness, if any, received from the holders of
Guarantor Senior Indebtedness (or their Representatives) or, if such information
is not received from such holders or their
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Representatives, from the Company or the Guarantors and only amounts included in
the information provided to the Trustee shall be paid to the holders of
Guarantor Senior Indebtedness.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Guarantor Senior Indebtedness thereafter
due or declared to be due shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment with respect
to Obligations on the Guarantees.
SECTION 12.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshalling of assets of any
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to any Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Guarantor Senior
Indebtedness shall first be paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of the Guarantor
Senior Indebtedness, before any payment or distribution of any kind or character
is made on account of any Obligations of a Guarantor on the Guarantees, or for
the acquisition of any of the Securities for cash or property or otherwise. Upon
any such dissolution, winding-up, liquidation, reorganization, receivership or
similar proceeding, any payment, or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders of the Guarantees or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by the Guarantors or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders of the Guarantees or by
the Trustee under this Indenture if received by them, directly to the holders of
Guarantor Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Indebtedness held by such holders) or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Guarantor Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of Guarantor Senior Indebtedness remaining unpaid until all such
Guarantor Senior Indebtedness has been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of Guarantor Senior Indebtedness.
(b) To the extent any payment of Guarantor Senior Indebtedness
(whether by or on behalf of a Guarantor, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of a Guarantor of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 12.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Indebtedness (pro rata to such
holders on the basis of the respective amount of Guarantor Senior Indebtedness
held by such holders) or their respective Representatives, or to the trustee or
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trustees under any indenture pursuant to which any of such Guarantor Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of Guarantor Senior Indebtedness remaining unpaid
until all such Guarantor Senior Indebtedness has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Indebtedness.
(d) The consolidation of any Guarantor with, or the merger of
any Guarantor with or into, another corporation or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of all or
substantially all of its assets to another corporation upon the terms and
conditions provided in Section 11.05 as if the Guarantor were the Company and as
long as permitted under the terms of the Guarantor Senior Indebtedness shall not
be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 12.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume such Guarantor's
obligations hereunder in accordance with Section 11.05 as if the Guarantor were
the Company.
SECTION 12.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Sections 12.01 and 12.02, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence
of actual knowledge by the Trustee that a given payment would be prohibited by
Sections 12.01 and 12.02, the application by the Trustee of any moneys deposited
with it for the purpose of making such payments of principal of, and interest
on, the Securities to the Holders entitled thereto unless, at least one Business
Day prior to the date upon which such payment would otherwise become due and
payable, the Trustee shall have actually received the written notice provided
for in Section 12.02(a) or in Section 12.09. The Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of any Guarantor.
SECTION 12.05. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Indebtedness, the Holders of the Guarantees shall be
subrogated to the rights of the holders of Guarantor Senior Indebtedness to
receive payments or distributions of cash, property or securities of a Guarantor
applicable to the Guarantor Senior Indebtedness until the Securities shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Guarantor Senior Indebtedness by or on
behalf of any Guarantor or by or on behalf of the holders of the Guarantees by
virtue of this Article Twelve which otherwise would have been made to such
holders shall, as between such Guarantor and the holders of the Guarantees, be
deemed to be a payment by such Guarantor to or on account of the Guarantor
Senior Indebtedness.
SECTION 12.06. GUARANTEE PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The subordination provisions of this Article Twelve are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in Section 12.02,
holders of Designated Guarantor Senior Indebtedness on the other hand. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among each Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and the
Holders of the Securities, the
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obligation of such Guarantor, which is absolute and unconditional, to make
payments to the Holders in respect of its obligations under its Guarantee as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against such Guarantor of the Holders of the
Securities and creditors of such Guarantor other than the holders of the
Guarantor Senior Indebtedness of such Guarantor; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon a Default or an Event of Default under this Indenture,
subject to the rights, if any, under the subordination provisions of this
Article Twelve of the holders of Guarantor Senior Indebtedness of the Guarantors
hereunder and, to the extent set forth in Section 12.02, holders of Designated
Guarantor Senior Indebtedness on the other hand (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Guarantor
referred to in Section 12.03, to receive, pursuant to and in accordance with
such Section, cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder, or (2) under the conditions specified in Section
12.02, to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 12.02(c).
The failure by any Guarantor to make a payment in respect of
its obligations under this Guarantee by reason of any provision of this Article
Twelve shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
SECTION 12.07. TRUSTEE TO EFFECTUATE SUBORDINATION OF OBLIGATIONS UNDER THE
GUARANTEE.
Each Holder of a Security by its acceptance of such Security
authorizes and expressly directs the Trustee to take on behalf of such Holder of
Securities such action as may be necessary or appropriate to effectuate as
between the holders of Guarantor Senior Indebtedness and Holders of Guarantees,
the subordination provided in this Article Twelve, and appoints the Trustee its
attorney-in-fact to act for it and on its behalf for such purposes, including,
in the event of any dissolution, winding-up, liquidation or reorganization of
any Guarantor (whether in bankruptcy, insolvency, receivership, reorganization
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of such
Guarantor, the filing of a claim for the unpaid balance of its Guarantees and
accrued interest in the form required in those proceedings.
SECTION 12.08. NO WAIVER OF GUARANTEE SUBORDINATION PROVISIONS.
No right of any present or future holder of any Guarantor
Senior Indebtedness of any Guarantor to enforce subordination as provided herein
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or any Guarantor or by any act or failure to act,
in good faith, by any such holder, or by any non-compliance by the Company or
any Guarantor with the terms of this Indenture, regardless of any knowledge
thereof any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Indebtedness of any Guarantor may, at
any time and from time to time, without the consent of or notice to the Trustee,
without incurring responsibility to the Trustee or the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Guarantees to the
holders of such Guarantor Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Guarantor Senior Indebtedness or any
Senior Indebtedness as to which such Guarantor Senior Indebtedness relates, or
otherwise amend or supplement in any manner such Guarantor Senior Indebtedness
or any Senior Indebtedness to which such Guarantor
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Senior Indebtedness relates; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Guarantor Senior
Indebtedness or any Senior Indebtedness as to which such Guarantor Senior
Indebtedness relates; (3) release any person liable in any manner for the
collection or payment of such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates; and (4)
exercise or refrain from exercising any rights against such Guarantor and any
other Person.
SECTION 12.09. GUARANTORS TO GIVE NOTICE TO TRUSTEE.
The Company and each Guarantor shall give prompt written
notice to the Trustee of any fact known to such Guarantor the making of any
payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Twelve. Notwithstanding the subordination provisions
of this Article Twelve or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of
default with respect to any Guarantor Senior Indebtedness or of any other facts
which would prohibit the making of any payment to or by the Trustee unless and
until the Trustee shall have received notice in writing from the Company, such
Guarantor or from a holder of Guarantor Senior Indebtedness or a Representative
therefor, and, prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge to the contrary)
that no such facts exist. In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Guarantor Senior Indebtedness of any Guarantor to participate in any
payment or distribution pursuant to this Article Twelve, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Guarantor Senior Indebtedness of each Guarantor held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Twelve, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 12.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
REGARDING DISSOLUTION, ETC., OF GUARANTORS.
Upon any payment or distribution of assets of a Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
bankruptcy, liquidation, reorganization, dissolution or winding-up proceeding
are pending or, upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Guarantees, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness of such Guarantor and
other Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
SECTION 12.11. RIGHTS OF TRUSTEE AS A HOLDER OF GUARANTOR SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHT.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Twelve with respect to any Guarantor
Senior Indebtedness of any Guarantor which may at any time be held by the
Trustee, to the same extent as any other holder of such Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article Twelve shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.07.
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SECTION 12.12. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Twelve of the holders, from time to time, of Guarantor Senior
Indebtedness of the Guarantors.
SECTION 12.13. TRUSTEE'S RELATION TO GUARANTOR SENIOR INDEBTEDNESS.
The Trustee and any agent of the Guarantor or the Trustee
shall be entitled to all the rights set forth in this Article Twelve with
respect to any Guarantor Senior Indebtedness which may at any time be held by it
in its individual or any other capacity to the same extent as any other holder
of the Guarantor Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any such agent of any of its rights as such holder and shall not
be liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company or to any other
person cash, property or securities to which any holders of Guarantor Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its duties,
covenants, responsibilities and obligations as are specifically set forth in
this Article Twelve, and no implied covenants or obligations with respect to the
holders of Guarantor Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary or
other duty to the holders of Guarantor Senior Indebtedness.
Whenever a distribution is to be made or a notice given to
holders or owners of Guarantor Senior Indebtedness, the distribution may be made
and the notice may be given to their Representative, if any.
SECTION 12.14. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
GUARANTORS OR HOLDERS OF GUARANTOR SENIOR INDEBTEDNESS.
No right of any present or future holders of any Guarantor
Senior Indebtedness to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Guarantors or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Guarantors with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee, without
incurring responsibility to the Trustee or the Holders of the Securities and
without impairing or releasing the subordination provided in this Article Twelve
or the obligations hereunder of the Holders of the Securities to the holders of
the Guarantor Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Indebtedness, or otherwise amend or
supplement in any manner Guarantor Senior Indebtedness, or any instrument
evidencing the same or any agreement under which Guarantor Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (iii)
release any Person liable in any manner for the payment or collection of
Guarantor Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Guarantors and any other Person.
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SECTION 12.15. THIS ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Twelve
will not be construed as preventing the occurrence of an Event of Default.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 13.02. NOTICES.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company:
300 Crescent Court
Suite 600
Dallas, Texas 75201
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
The Company and the Trustee by written notice to each other
may designate additional or different addresses for notices. Any notice or
communication to the Company or the Trustee shall be deemed to have been given
or made as of the date so delivered if personally delivered; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Except with respect to the issuance of the series of
Securities on the date of this Indenture, upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the signers, all
conditions precedent to be performed by the Company, if any, provided for in
this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, of any,
provided for in this Indenture relating to the proposed action have been
complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;.
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 13.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such
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place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 13.08. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or
in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the date first written above.
The Company
CHANCELLOR MEDIA CORPORATION OF LOS
ANGELES
By: /s/ OMAR CHOUCAIR
--------------------------------------
Name: Omar Choucair
Title: Vice President
The Guarantors:
On Behalf of the Subsidiary Guarantors
Listed on Schedule I here
By: /s/ OMAR CHOUCAIR
--------------------------------------
Name: Omar Choucair
Title: Vice President
The Trustee:
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
--------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
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SCHEDULE I
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Martin Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
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43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Martin Media (a California limited partnership)
47. Dowling Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Martin & MacFarlane, Inc. (a California corporation)
51. Katz Media Corporation
52. Katz Communications, Inc.
53. Katz Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Christal Radio Sales, Inc.
56. Eastman Radio Sales, Inc.
57. Seltel Inc.
58. Katz Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
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EXHIBIT A-1
(Face of Security)
================================================================================
CUSIP: ______________
9% [Series A] [Series B] Senior Subordinated Notes due October 1, 2008
No.: $_____________
Chancellor Media Corporation of Los Angeles
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on ________________, 2008.
Interest Payment Dates: ____________, and ___________
Record Dates: _____________, and ___________
DATED: ____________, 199_
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
BY:
------------------------------
Name:
Title:
This is one of the [Global]
Securities referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
---------------------------------
Authorized Signatory
================================================================================
A1-1
<PAGE> 94
(REVERSE OF SECURITY)
9% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2008
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
1. Interest. CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a
Delaware corporation (the "COMPANY"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. Interest on the
Securities will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from September 30, 1998. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
April 1, 1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. LEGAL TENDER"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, The Bank of New York
(the "TRUSTEE") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or Co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or Co-Registrar.
4. Indenture and Guarantees. The Company issued the Securities
under an indenture, dated as of September 30, 1998 (the "INDENTURE"), among the
Company, the Guarantors and the Trustee. This Security is one of a duly
authorized issue of Securities of the Company designated as its 9% Senior
Subordinated Notes due October 1, 2008 (the "SECURITIES"), limited (except as
otherwise provided in the Indenture) in aggregate principal amount to
$750,000,000, which may be issued under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
TIA for a statement of them. The Securities are general unsecured obligations of
the Company. Payment on each Security is guaranteed on a senior subordinated
basis, jointly and severally, by the Guarantors pursuant to Article Eleven of
the Indenture.
5. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter created,
incurred,
A1-2
<PAGE> 95
assumed or guaranteed. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holder of this Security. Each Holder by his acceptance hereof agrees to be
bound by such provisions and authorizes and expressly directs the Trustee, on
his behalf, to take such action as may be necessary or appropriate to effectuate
the subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Optional Redemption. (a) The Securities will be redeemable,
at the Company's option, in whole at any time or in part from time to time, on
and after October 1, 2003, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on October 1 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon to the date of redemption:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2003............................................... 106.50%
2004............................................... 105.50%
2005............................................... 104.50%
2006............................................... 103.50%
2007............................................... 102.00%
2008............................................... 100.00%
</TABLE>
(b) In addition, on or prior to October 1, 2000, the
Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem the Securities, in part, at a redemption price of
109.0% of the principal amount thereof, plus accrued and unpaid interest thereon
to the date of redemption; provided, however, that after any such redemption the
aggregate principal amount of the Securities outstanding must equal at least 75%
of the aggregate principal amount of the Securities originally issued.
(c) In addition, at any time on or prior to October
1, 2000, the Securities may also be redeemed as a whole at the option of the
Company upon the occurrence of a Change of Control, upon not less than 30 nor
more than 60 days prior notice (but in no event more than 90 days after the
occurrence of such Change of Control) mailed by first class mail to each
holder's registered address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium (as defined below) as of,
and accrued and unpaid interest, if any, to the date of redemption (the
"REDEMPTION DATE") (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date in
respect of then outstanding Securities).
"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the principal amount of such
Security and (ii) (a) the present value of all remaining required interest and
principal payments due on such Security and all premium payments relating
thereto assuming a Redemption Date of October 1, 2003, computed using a discount
rate equal to the Treasury Rate (as defined below) plus 100 basis points minus
(b) the then outstanding principal amount of such Security minus (c) accrued
interest paid on the Redemption Date.
"TREASURY RATE" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) ("STATISTICAL RELEASE") which has become publicly available at least
two business days prior to the Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption
A1-3
<PAGE> 96
Date to October 1, 2003; provided, however, that if the period from the
Redemption Date to October 1, 2003 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to October 1, 2003 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
Offering and effect such redemption not later than 90 days after the
consummation of such Public Equity Offering. Securities in denominations larger
than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture, the
Company shall be required to offer to repurchase all of the then outstanding
Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of repurchase. Holders of Securities which are the subject of such
an offer to repurchase shall receive an offer to repurchase and may elect to
have such Securities repurchased in accordance with the provisions of the
Indenture pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the date
of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities during a period beginning 15
days before the mailing of a redemption notice for any Securities or portions
thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Security
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. if the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Securities to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Securities (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Securities).
A1-4
<PAGE> 97
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities,
or comply with Article Five of the Indenture, or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Security.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, engage in certain Asset Swaps, enter into
transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries and merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Securities and
the Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Securities unless it has been offered indemnity or security
reasonably satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines in good faith that
withholding notice is in their interest.
18. Trustee Dealings. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company, its Subsidiaries, Unrestricted
Subsidiaries or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of authentication
on this Security.
21. Governing Law. The laws of the State of New York shall
govern this Security and the Indenture, without regard to principles of conflict
of laws.
A1-5
<PAGE> 98
22. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed hereon.
24. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security for Securities of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having identical terms as this
Security. The Holders of the Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
25. Indenture. Each Holder, by accepting a Security, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time. Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 300 Crescent Court, Suite 600, Dallas, Texas 75201.
A1-6
<PAGE> 99
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "GUARANTOR," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior subordinated basis (such guarantee
by each Guarantor being referred to herein as the "GUARANTEE") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal and interest, if any, on the Securities, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms set forth
in Article Ten of the Indenture and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which the
Guarantees are noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
GUARANTORS:
On Behalf of the Subsidiary Guarantors Listed
on Exhibit A hereto
By:
------------------------------------------
Name: Omar Choucair
Title: Vice President
A1-7
<PAGE> 100
Exhibit A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Martin Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
A1-8
<PAGE> 101
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Martin Media (a California limited partnership)
47. Dowling Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Martin & MacFarlane, Inc. (a California corporation)
51. Katz Media Corporation
52. Katz Communications, Inc.
53. Katz Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Christal Radio Sales, Inc.
56. Eastman Radio Sales, Inc.
57. Seltel Inc.
58. Katz Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
A1-9
<PAGE> 102
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:
-----------------------
Your Signature:
-------------------------
(Sign exactly as your name appears on
the face of this Security)
SIGNATURE GUARANTEE.
- ------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A1-10
<PAGE> 103
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount you elect to have purchased: $________
Date: Your Signature:
---------- -------------------------
(Sign exactly as your
name appears on the
Note)
Tax Identification No:
------------------
SIGNATURE GUARANTEE.
- -------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A1-11
<PAGE> 104
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(1)
The following exchanges of a part of this Global Security for
an interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for an
interest in this Global Security, have been made:
<TABLE>
<CAPTION>
Amount of decrease Amount of Principal Amount Signature of
in increase in of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of Exchange this Global Security this Global Security decrease (or increase) Custodian
- ---------------- -------------------- -------------------- ---------------------- ------------
<S> <C> <C> <C> <C>
</TABLE>
- -----------------------
(1) This should be included only if the Security is issued in global form.
A1-12
<PAGE> 105
EXHIBIT A-2
(Face of Regulation S Temporary Global Security)
================================================================================
CUSIP:______________
9% [Series A] [Series B] Senior Subordinated Notes due October 1, 2008
No.______________ $_____________
Chancellor Media Corporation of Los Angeles
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on ________________, 2008.
Interest Payment Dates: ____________, and ______________
Record Dates: _____________, and _____________
DATED: ____________, 199_
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By
------------------------------
Name:
Title:
This is one of the [Global]
Securities referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
---------------------------------
Authorized Signatory
================================================================================
A2-1
<PAGE> 106
(REVERSE OF REGULATION S TEMPORARY GLOBAL SECURITY)
9% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2008
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT
OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT
OF ANOTHER QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES OF AMERICA AND OTHER JURISDICTIONS.
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware
corporation (the "COMPANY"), promises to pay interest on the principal amount of
this Security at the rate per annum shown above. Interest on the Securities will
accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from September 30, 1998. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing April 1,
1999. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
A2-2
<PAGE> 107
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. LEGAL TENDER"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, The Bank of New York
(the "TRUSTEE") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or Co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or Co-Registrar.
4. Indenture and Guaranty. The Company issued the Securities
under an Indenture, dated as of September 30, 1998 (the "INDENTURE"), among the
Company, the Guarantors and the Trustee. This Security is one of a duly
authorized issue of Securities of the Company designated as its 9% Senior
Subordinated Notes due October 1, 2008 (the "SECURITIES"), limited (except as
otherwise provided in the Indenture) in aggregate principal amount to
$750,000,000, which may be issued under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
TIA for a statement of them. The Securities are general unsecured obligations of
the Company. Payment on each Security is guaranteed on a senior subordinated
basis, jointly and severally, by the Guarantors pursuant to Article Eleven of
the Indenture.
5. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holder of this Security. Each Holder by his acceptance hereof agrees to be
bound by such provisions and authorizes and expressly directs the Trustee, on
his behalf, to take such action as may be necessary or appropriate to effectuate
the subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Optional Redemption. (a) The Securities will be redeemable,
at the Company's option, in whole at any time or in part from time to time, on
and after October 1, 2003, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on October 1 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon to the date of redemption:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2003................................................ 106.50%
2004................................................ 105.50%
2005................................................ 104.50%
2006................................................ 103.50%
2007................................................ 102.00%
2008................................................ 100.00%
</TABLE>
A2-3
<PAGE> 108
(b) In addition, on or prior to October 1, 2000, the
Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem the Securities, in part, at a redemption price of
109.0% of the principal amount thereof, plus accrued and unpaid interest thereon
to the date of redemption; provided, however, that after any such redemption the
aggregate principal amount of the Securities outstanding must equal at least 75%
of the aggregate principal amount of the Securities originally issued.
(c) In addition, at any time on or prior to
October 1, 2000, the Securities may also be redeemed as a whole at the option of
the Company upon the occurrence of a Change of Control, upon not less than 30
nor more than 60 days prior notice (but in no event more than 90 days after the
occurrence of such Change of Control) mailed by first class mail to each
holder's registered address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium (as defined below) as of,
and accrued and unpaid interest, if any, to the date of redemption (the
"REDEMPTION DATE") (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date in
respect of then outstanding securities).
"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the principal amount of such
Security and (ii) (a) the present value of all remaining required interest and
principal payments due on such Security and all premium payments relating
thereto assuming a Redemption Date of October 1, 2003, computed using a discount
rate equal to the Treasury Rate (as defined below) plus 100 basis points minus
(b) the then outstanding principal amount of such Security minus (c) accrued
interest paid on the Redemption Date.
"TREASURY RATE" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) ("STATISTICAL RELEASE") which has become publicly available at least
two business days prior to the Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to October 1, 2003;
provided, however, that if the period from the Redemption Date to October 1,
2003 is not equal to the constant maturity of a United States Treasury security
for which a weekly average yield is given, the Treasury Rate shall be obtained
by linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such
yields are given, except that if the period from the Redemption Date to October
1, 2003 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
Offering and effect such redemption within 90 days after the consummation of
such Public Equity Offering. Securities in denominations larger than $1,000 may
be redeemed in part.
8. Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture, the
Company shall be required to offer to repurchase all of the then outstanding
Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of repurchase. Holders of Securities which are the subject of such
an offer to repurchase shall receive an
A2-4
<PAGE> 109
offer to repurchase and may elect to have such Securities repurchased in
accordance with the provisions of the Indenture pursuant to and in accordance
with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the date
of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities during a period beginning 15
days before the mailing of a redemption notice for any Securities or portions
thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Security
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. if the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Securities to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto., the Company will be discharged from certain provisions of the
Indenture and the Securities (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities,
or comply with Article Five of the Indenture, or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Security.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, engage in certain Asset Swaps, enter into
transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries and merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations.
A2-5
<PAGE> 110
16. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Securities and
the Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare the Securities to be due and
payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Securities unless it has been offered indemnity or security
reasonably satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines in good faith that
withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, its Subsidiaries,
Unrestricted Subsidiaries or their respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of authentication
on this Security.
21. Governing Law. The laws of the State of New York shall
govern this Security and the Indenture, without regard to principles of conflict
of laws.
22. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Number. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Security, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture.
A2-6
<PAGE> 111
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 300 Crescent Court, Suite 600, Dallas, Texas 75201.
A2-7
<PAGE> 112
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "GUARANTOR," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior subordinated basis (such guarantee
by each Guarantor being referred to herein as the "GUARANTEE") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal and interest, if any, on the Securities, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms set forth
in Article Ten of the Indenture and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which the
Guarantees are noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
GUARANTORS:
On Behalf of the Subsidiary Guarantors
Listed on Exhibit A hereto
By:
---------------------------------------------
Name: Omar Choucair
Title: Vice President
A2-8
<PAGE> 113
Exhibit A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Martin Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
A2-9
<PAGE> 114
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Martin Media (a California limited partnership)
47. Dowling Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Martin & MacFarlane, Inc. (a California corporation)
51. Katz Media Corporation
52. Katz Communications, Inc.
53. Katz Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Christal Radio Sales, Inc.
56. Eastman Radio Sales, Inc.
57. Seltel Inc.
58. Katz Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
A2-10
<PAGE> 115
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:
---------------------
Your Signature:
----------------
(Sign exactly as your name
appears on the face of this
Security)
SIGNATURE GUARANTEE.
- -------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A2-11
<PAGE> 116
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount you elect to have purchased: $________
Date: Your Signature:
---------- -------------------------
(Sign exactly as your
name appears on the
Note)
Tax Identification No:
------------------
SIGNATURE GUARANTEE.
- -------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A2-12
<PAGE> 117
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL SECURITY(2)
The following exchanges of a part of this Global Security for
an interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for an
interest in this Global Security, have been made:
<TABLE>
<CAPTION>
Amount of decrease Amount of Principal Amount Signature of
in increase in of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of Exchange this Global Security this Global Security decrease (or increase) Custodian
- ---------------- -------------------- -------------------- ---------------------- ------------
<S> <C> <C> <C> <C>
</TABLE>
- -----------------------
(2) This should be included only if the Security is issued in global form.
A2-13
<PAGE> 118
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Chancellor Media Corporation of Los Angeles
300 Crescent Court
Suite 600
Dallas, Texas 75201
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attn: Corporate Trust Trustee Administration
Re: 9% Series __ Senior Subordinated Notes due October 1,
2008
Reference is hereby made to the Indenture, dated as of
September 30, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
______________, (the "TRANSFEROR") owns and proposes to
transfer the Security[ies] or interest in such Security[ies] specified in Annex
A hereto, in the principal amount of $___________ in such Security[ies] or
interests (the "TRANSFER"), to __________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE TEMPORARY REGULATION S GLOBAL SECURITY, THE REGULATION S GLOBAL SECURITY OR
A DEFINITIVE SECURITY PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was
B-1
<PAGE> 119
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an initial purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security, the Temporary Regulation S Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Security or Restricted Definitive
Securities and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) if such Transfer is in respect of a principal amount
of Securities at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer
is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Global
Security and/or the Definitive Securities and in the Indenture and the
Securities Act.
B-2
<PAGE> 120
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Securities, on Restricted Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
--------------------------------------------
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated: __________, ____
B-3
<PAGE> 121
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP ______), or
(ii) [ ] Regulation S Global Security (CUSIP ______), or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP ______), or
(ii) [ ] Regulation S Global Security (CUSIP ______), or
(iii) [ ] Unrestricted Global Security (CUSIP ______); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
B-4
<PAGE> 122
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Chancellor Media Corporation of Los Angeles
300 Crescent Court
Suite 600
Dallas, Texas 75201
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attn: Corporate Trust Trustee Administration
Re: 9% Series __ Senior Subordinated Notes due October 1,
2008
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of
September 30, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
____________, (the "OWNER") owns and proposes to exchange the
Security[ies] or interest in such Security[ies] specified herein, in the
principal amount of $____________ in such Security[ies] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Security for a beneficial interest in an Unrestricted Global
Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Security is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted Definitive Security, the Owner hereby certifies
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<PAGE> 123
(i) the Definitive Security is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Security is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Owner's Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Security, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's
Exchange of a Restricted Definitive Security for an Unrestricted Definitive
Security, the Owner hereby certifies (i) the Unrestricted Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Security
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Security
for a Restricted Definitive Security with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Security is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Security issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Security and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection
with the Exchange of the Owner's Restricted Definitive Security for a beneficial
interest in the [CHECK ONE] __144A Global Security, __ Regulation S Global
Security with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Securities and
pursuant to and
C-2
<PAGE> 124
in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.
C-3
<PAGE> 125
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
---------------------------------------------------
[Insert Name of Owner]
By:
-----------------------------------------------
Name:
Title:
Dated: __________, ____
C-4
<PAGE> 126
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Chancellor Media Corporation of Los Angeles
300 Crescent Court
Suite 600
Dallas, Texas 75201
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attn: Corporate Trust Trustee Administration
Re: 9% Series __ Senior Subordinated Notes due October 1,
2008
Reference is hereby made to the Indenture, dated as of
September 30, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Security, or
(b) [ ] a Definitive Security,
we confirm that:
1. We understand that any subsequent transfer of the
Securities or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Securities or any interest
therein except in compliance with, such restrictions and conditions and the
United States Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the Securities and
any interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the
Securities or any interest therein, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (c) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Securities, at the time of
transfer, of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of
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<PAGE> 127
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Security or beneficial interest in a Global
Security from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the
Securities or beneficial interest therein, we will be required to furnish to you
and the Company such certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Securities purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Securities or beneficial interest
therein purchased by us for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
---------------------------------------------------
[Insert Name of Owner]
By:
-----------------------------------------------
Name:
Title:
Dated: __________, ____
D-2
<PAGE> 1
EXHIBIT 4.42
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
$750,000,000
9% Senior Subordinated Notes due October 1, 2008
PURCHASE AGREEMENT
September 25, 1998
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Chancellor Media Corporation of Los Angeles (the "COMPANY"), a
Delaware corporation, and each subsidiary guarantor named on the signature page
hereto (the "GUARANTORS" and together with the Company, the "ISSUERS"), hereby
confirm their agreement with you (the "INITIAL PURCHASERS"), as set forth below.
1. The Securities. Subject to the terms and conditions
herein contained, the Company proposes to issue and sell to the Initial
Purchasers $750,000,000 in aggregate principal amount of its 9% Senior
Subordinated Notes due 2008, Series A (the "NOTES" and, together with the
guarantee of each Guarantor (the "GUARANTEE"), the "SECURITIES"). The Notes are
to be issued under an indenture (the "INDENTURE") to be dated as of September
30, 1998 by and among the Company, the Guarantors and The Bank of New York, as
trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"ACT"), in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has
prepared an offering circular dated September 25, 1998 (the "OFFERING CIRCULAR")
setting forth or including a description of the terms of the Notes, the terms of
the offering of the Notes, a description of the Company and any material
developments relating to the Company occurring after the date of the most recent
historical financial statements included therein.
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement, substantially in the form attached hereto as Exhibit A (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company has agreed,
among other things, to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein (i) a registration
statement (the "REGISTRATION STATEMENT") under the Act relating to the Company's
9% Senior Subordinated Notes due 2008, Series B (the "EXCHANGE NOTES"), to be
offered in exchange for the Notes or (ii) a shelf registration statement
pursuant to Rule 415 under the Act relating to the resale of the Notes by
holders thereof or, if applicable, relating to the resale of debt securities of
the Company substantially identical to the Exchange Notes (the "PRIVATE EXCHANGE
NOTES") by the Initial Purchasers pursuant to an exchange of the Notes for
Private Exchange Notes.
<PAGE> 2
2. Representations and Warranties of each of the Issuers.
Each of the Issuers represents and warrants to and agrees with the Initial
Purchasers that:
(a) The Offering Circular and any amendment or
supplement thereto as of the date thereof does not and as of the Closing Date
(as defined in Section 3 below) will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 2(a) do not apply to statements or omissions made in reliance upon and
in conformity with information relating to the Initial Purchasers furnished to
the Company in writing by or on behalf of such Initial Purchasers expressly for
use in the Offering Circular or any amendment or supplement thereto.
(b) Each of the Issuers has been duly organized, is
validly existing and is in good standing under the laws of its jurisdiction of
organization, with all requisite power and authority to own its properties and
conduct its businesses as now conducted as described in the Offering Circular,
and is duly qualified to do business and is in good standing in all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its businesses requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
condition (financial or other) or results of operations of the Issuers, taken as
a whole (a "MATERIAL ADVERSE EFFECT"). As of the Closing Date, the Company will
have the authorized, issued and outstanding capitalization set forth in the
Offering Circular under the caption "Description of Capital Stock;" the
outstanding shares of capital stock of each of the Issuers have been duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; and except as disclosed
in the Offering Circular under the caption "Description of Certain
Indebtedness--Senior Credit Facility," all of the outstanding shares of capital
stock of each of the Guarantors are owned (directly or indirectly) by the
Company, free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability (other than those imposed by the Act and the
securities or blue sky laws of certain jurisdictions) or voting. The Company
does not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities or have any equity interest in any firm, partnership,
joint venture or other entity other than interests in its subsidiaries or as
described in the Offering Circular.
(c) No holder of securities of the Issuers will be
entitled to have such securities registered under the registration statements
required to be filed by any of the Issuers pursuant to the Registration Rights
Agreement, other than as expressly permitted thereby.
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under the
Notes, the Exchange Notes and the Private Exchange Notes. The Notes, when
issued, will be in the form contemplated by the Indenture and conform in all
material respects to the description thereof in the Offering Circular. The
Notes, the Exchange Notes and the Private Exchange Notes have each been duly
authorized by the Company and, when executed by the Company and authenticated by
the Trustee in accordance with the provisions of the Indenture and, in the case
of the Notes, delivered to and paid for by the Initial Purchasers in accordance
with the terms of this Agreement, will be entitled to the benefits of the
Indenture and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors, rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and except insofar as the usury waiver
contained therein may be unenforceable. Each of the
2
<PAGE> 3
Issuers has all requisite power and authority to execute, deliver and perform
its respective obligations under the Indenture; the Indenture has been duly
authorized by the Issuers and, when executed and delivered by the Issuers
(assuming the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding obligation of the Issuers, enforceable
against the Issuers in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors, rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except insofar as the usury waiver contained therein may
be unenforceable.
(e) The Guarantees have been duly authorized by each
Guarantor and, when executed by the Guarantors and authenticated by the Trustee
in accordance with the provisions of the Indenture will, upon the execution,
authentication and delivery of the Notes and payment therefor in accordance with
the terms of this Agreement, be entitled to the benefits of the Indenture and
will constitute a valid and legally binding obligation of the Guarantors
enforceable in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditor's rights and remedies generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought (regardless of whether such enforcement is considered in a proceeding
in equity or at law), and except insofar as the usury waiver contained therein
may be unenforceable.
(f) Each of the Issuers has all requisite corporate
power and authority to execute and deliver this Agreement, to issue and deliver
the Securities and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by each of the
Issuers. No consent, approval, authorization or order of any court or
governmental agency or body (including, without limitation, the Federal
Communications Commission (the "FCC")) is required for the performance of this
Agreement, the Notes, the Guarantees, the Indenture or any of the transactions
contemplated hereby by any of the Issuers, to the extent a party thereto, except
such as have been obtained and such as may be required under state securities or
blue sky laws in connection with the purchase and initial resale of the
Securities by the Initial Purchasers and except as contemplated by the
Registration Rights Agreement. None of the Issuers is (i) in violation of its
certificate of incorporation or bylaws (or similar organizational document),
(ii) in violation of any statute, judgment, decree, order, rule or regulation
applicable to any of the Issuers, which violation would have a Material Adverse
Effect, or (iii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of the
Issuers is a party or to which the Company or the Guarantors is subject, which
violation or default would have a Material Adverse Effect.
(g) Each of the Issuers has all requisite corporate
power and authority to enter into the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by each of the Issuers
and, when executed and delivered by the Issuers, will constitute a valid and
legally binding obligation of the Issuers, enforceable against each of the
Issuers in accordance with its terms, except that (A) the enforcement thereof
may be subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors, rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (B) any rights to indemnity or contribution thereunder may
be limited by federal and state securities laws and public policy
considerations.
3
<PAGE> 4
(h) The execution, delivery and performance by the
Company and the Guarantors of this Agreement, the Notes, the Guarantees, the
Indenture and the Registration Rights Agreement and the consummation by the
Issuers of the transactions contemplated hereby and thereby will not conflict
with or constitute or result in a breach or violation by the Company of any of
(i) the terms or provisions of, or constitute a default by any Issuer under, any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement or other agreement or instrument to which any
Issuer is a party or to which any of them or their respective properties is
subject (each a "CONTRACT" or collectively, the "CONTRACTS"), which conflict,
breach, violation or default would have a Material Adverse Effect, (ii) the
certificate of incorporation or bylaws (or similar organizational document) of
any Issuer, as the same will be in effect on the Closing Date, or (iii)
(assuming compliance with all applicable state securities and blue sky laws and
assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or
regulation of any court or governmental agency or other body applicable to any
Issuer or any of their properties, which conflict, breach, violation or default
would have a Material Adverse Effect.
(i) The audited consolidated financial statements of
the Company and its consolidated subsidiaries included in the Offering Circular
present fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of the Company and its consolidated
subsidiaries at the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The unaudited
consolidated financial statements and the related notes included in the Offering
Circular present fairly, in all material respects, the consolidated financial
position, results of operations and cash flows of the Company and its
consolidated subsidiaries at the dates and for the periods to which they relate,
subject to year-end audit adjustments and the more detailed note requirements
for audited statements, and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. To the Company's knowledge, PricewaterhouseCoopers,
LLP, KPMG Peat Marwick LLP and Arthur Andersen LLP which have examined certain
of such consolidated financial statements as set forth in its reports included
in the Offering Circular are independent public accountants under Rule 101 of
the AICPA's Code of Professional Conduct, and its rulings and interpretations.
(j) The pro forma consolidated financial information
(including the notes thereto) included in the Offering Circular (A) presents the
information shown therein under the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"); (B) has been prepared in accordance with the applicable requirements of
Regulation S-X promulgated under the Exchange Act; (C) has been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements; and (D)has been properly computed on the bases described
therein. The assumptions used in the preparation of the pro forma financial
statements and other pro forma condensed consolidated financial information
included in the Offering Circular are reasonable and the adjustments used
therein are reasonably appropriate to give effect to the transactions or
circumstances referred to therein.
(k) Except as described in the Offering Circular,
there is not pending or, to the knowledge of any Issuer, threatened, any action,
suit, proceeding, inquiry or investigation to which any Issuer is a party, or to
which the property of any Issuer or any Guarantor is subject, before or brought
by any court or governmental agency or body (including, without limitation, the
FCC), that would have a Material Adverse Effect.
4
<PAGE> 5
(l) Each of the Issuers owns or possesses licenses or
other rights to use all material patents, trademarks, service marks, trade
names, copyrights and know-how necessary to conduct the businesses now or
proposed to be operated by it as described in the Offering Circular, and none of
the Issuers has received any notice of infringement of or conflict with (or
knows of any such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade names, copyrights
or know-how which, if such assertion of infringement or conflict were sustained,
would have a Material Adverse Effect.
(m) Each of the Issuers has obtained, or has applied
for, all licenses, permits, franchises and other governmental authorizations
necessary to conduct the businesses now or proposed to be operated by it as
described in the Offering Circular, the lack of which would have a Material
Adverse Effect.
(n) Subsequent to the respective dates as of which
information is given in the Offering Circular and except as described therein or
contemplated thereby, (i) none of the Issuers has incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business and (ii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock.
(o) Except as described in the Offering Circular, none
of the Issuers is in default under any Contract, has received a notice or claim
of any such default or has knowledge of any breach of any Contract by the other
party or parties thereto, except such defaults or breaches as would not have a
Material Adverse Effect.
(p) Each of the Issuers has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not have a Material Adverse Effect, and
each has paid all taxes shown as due thereon; and other than tax deficiencies
which any Issuer is contesting in good faith and for which adequate reserves
have been provided, there is no tax deficiency that has been asserted against
any Issuer that would have a Material Adverse Effect.
(q) None of the Issuers nor any agent acting on their
behalf has taken or will take any action that might cause this Agreement or the
issuance and sale of the Securities to violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(r) Each of the Issuers has good and marketable title
to all real property and good title to all personal property described in the
Offering Circular as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the Offering
Circular as being leased by it (except for those leases of real property in
which the Company has good title and that would be marketable but for the
requirement that the landlord consent to an assignment or sublease of the
lease), free and clear of all liens, charges, encumbrances or restrictions,
except, in each case, as described in the Offering Circular or to the extent the
failure to have such title or the existence of such liens, charges, encumbrances
or restrictions would not have a Material Adverse Effect.
(s) Except for the Company's existing credit agreement
and except as described in the Offering Circular, there are no consensual
encumbrances or restrictions on the ability of the Guarantors (i) to pay
dividends or make any other distributions on its capital stock or to pay any
indebtedness owed to the Company; (ii) to make any loans or advances to, or
investments in, the Company;
5
<PAGE> 6
or (iii) to transfer any of its property or assets to the Company or the
Guarantors or any other subsidiary of the Company or the Guarantors.
(t) None of the Issuers is an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(u) None of the Issuers nor, to their knowledge, any
of their directors, officers or controlling persons has taken, directly or
indirectly, any action designed, or that might reasonably be expected, to cause
or result, under the Act or otherwise, in, or that has constituted,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes.
(v) Each of the Issuers is in compliance with all
provisions of Section 517.075 of Florida Statutes, as amended, relating to
issuers doing business with Cuba.
(w) The Notes, the Guarantees, the Exchange Notes, the
Private Exchange Notes, the Indenture and the Registration Rights Agreement
conform in all material respects to the descriptions thereof in the Offering
Circular.
(x) None of the Issuers nor any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) that is or could be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the Notes or (ii) engaged in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Notes or in
any manner involving a public offering within the meaning of Section 4(2) of the
Act. Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof, the Company has not been informed by counsel
that it is necessary in connection with the offer, sale and delivery of the
Notes to the Initial Purchasers in the manner contemplated by this Agreement to
register any of the Notes under the Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "TIA").
(y) No securities of the Company or any subsidiary are
of the same class (within the meaning of Rule 144A under the Act) as the Notes
and listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(z) The statistical and market-related data included
in the Offering Circular are based on or derived from sources that the Company
believes to be reliable and accurate in all material respects.
Any certificate signed by any officer of the Company or any
subsidiary and delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to the
Initial Purchasers as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities. On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Issuers
agree to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree to purchase from the Issuers, all of the Notes at 97.50% of their
principal amount. One or more certificates in definitive form for the Notes that
the Initial Purchasers have agreed to purchase hereunder, and in such
6
<PAGE> 7
denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 24 hours prior to
the Closing Date, shall be delivered by or on behalf of the Issuers to the
Initial Purchasers, against payment by or on behalf of the Initial Purchasers of
the purchase price therefore by wire transfer (same day funds) to such account
or accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Notes shall be made at the offices of Weil, Gotshal &
Manges LLP, 100 Crescent Court, Suite 1300, Dallas, Texas 75201, at 9:00 A.M.,
New York time, on September 30, 1998, or at such other place, time or date as
the Initial Purchasers, on the one hand, and the Company, on the other hand, may
agree upon, such time and date of delivery against payment being herein referred
to as the "CLOSING DATE." The Company will make such certificate or certificates
for the Notes available for checking and packaging by the Initial Purchasers at
the offices of Goldman, Sachs & Co. in New York, New York, or at such other
place as Goldman, Sachs & Co. may designate, prior to or on the Closing Date.
4. Offering by the Initial Purchasers. The Initial
Purchasers propose to make an offering of the Notes at the price and upon the
terms set forth in the Offering Circular, as soon as practicable after this
Agreement is entered into and as in the judgment of the Initial Purchasers is
advisable.
5. Covenants of the Issuers. Each of the Issuers, jointly
and severally, covenants and agrees with the Initial Purchasers that:
(a) None of the Issuers will amend or supplement the
Offering Circular or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given their consent, which will
not be unreasonably withheld. The Issuers will promptly, upon the reasonable
request of the Initial Purchasers or counsel for the Initial Purchasers, make
any amendments or supplements to the Offering Circular that may be necessary or
advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Each of the Issuers will cooperate with the
Initial Purchasers in arranging for the qualification of the Notes for offering
and sale under the securities or blue sky laws of which jurisdictions as the
Initial Purchasers may designate and will continue such qualifications in effect
for as long as may be reasonably necessary to complete the resale of the Notes;
provided, however, that in connection therewith, none of the Issuers shall be
required to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation in any such
jurisdiction where it is not so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Securities, any event occurs or
information becomes known as a result of which the Offering Circular as then
amended or supplemented would include any untrue statement of a material fact,
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary at any time to amend or supplement the
Offering Circular to comply with applicable law, the Issuers will promptly
notify the Initial Purchasers thereof and will prepare, at the expense of the
Issuers, an amendment or supplement to the Offering Circular that corrects such
statement or omission or effects such compliance.
(d) Each of the Issuers will, without charge, provide
to the Initial Purchasers and to counsel for the Initial Purchasers as many
copies of the Offering Circular or any amendment or supplement thereto as the
Initial Purchasers may reasonably request.
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<PAGE> 8
(e) The Company will apply the net proceeds from the
sale of the Notes substantially as set forth under "Use of Proceeds" in the
Offering Circular.
(f) For so long as the Securities remain outstanding
(but in no event longer than five years), the Issuers will furnish to the
Initial Purchasers copies of all reports and other communications (financial or
otherwise) furnished by the Issuers to the Trustee or to the holders of the
Securities and, as soon as available, copies of any reports or financial
statements furnished to or filed by the Company with the Commission or any
national securities exchange on which any class of securities of the Company may
be listed.
(g) Prior to the Closing Date, the Issuers will
furnish to the Initial Purchasers, as soon as they have been prepared, a copy of
any unaudited interim financial statements of the Company for any period
subsequent to the period covered by the most recent financial statements
appearing in the Offering Circular.
(h) None of the Issuers nor any of their respective
Affiliates will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) that could be
integrated with the sale of the Notes in a manner which would require the
registration under the Act of the Notes.
(i) The Issuers will not engage in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(j) The Issuers will use their reasonable best efforts
to (i) assist the Initial Purchasers in permitting the Notes to be designated
PORTAL securities in accordance with the rules and regulations adopted by the
NASD relating to trading in the Private Offerings, Resales and Trading through
Automated Linkages system (the "PORTAL System") and (ii) permit the Notes to be
eligible for clearance and settlement through The Depository Trust Company.
6. Expenses. The Issuers, jointly and severally, agree to pay the following
costs and expenses and all other costs and expenses incident to the performance
of their respective obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Offering Circular and any amendment or supplement thereto, and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Issuers, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Securities (including Trustee's fees),
(v) the qualification of the Notes under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Initial Purchasers relating thereto, (vi) fees and expenses of the Trustee,
including reasonable fees and expenses of counsel for the Trustee, and (vii) all
expenses and listing fees incurred in connection with the application for
quotation of the Notes on the PORTAL System. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated or because of any failure, refusal or
inability on the part of the Issuers to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder (other than
solely by reason of a default by the Initial Purchasers of its obligations
hereunder after all conditions hereunder have been satisfied in accordance
herewith), the Issuers agree to promptly reimburse the Initial
8
<PAGE> 9
Purchasers upon demand for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of Latham & Watkins, counsel for the Initial
Purchasers) that shall have been incurred by the Initial Purchasers in
connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Securities
shall, in its sole discretion, be subject to the following conditions on or
prior to the Closing Date:
(a) The Initial Purchasers shall have received the
opinion in form and substance satisfactory to the Initial Purchasers, dated the
Closing Date, of Weil, Gotshal & Manges LLP, counsel for the Issuers,
substantially in the form of Exhibit B hereto. In rendering such opinion, Weil,
Gotshal & Manges LLP shall have received and may rely upon such certificates and
other documents and information as it may reasonably request to pass upon such
matters.
(b) The Initial Purchasers shall have received an
opinion or opinions, dated the Closing Date, of Latham & Watkins, counsel for
the Initial Purchasers, with respect to certain legal matters relating to this
Agreement and certain FCC regulatory matters, and such other related matters as
the Initial Purchasers may require. In rendering such opinion or opinions,
Latham & Watkins shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass upon such
matters. In addition, in rendering their opinion or opinions, Latham & Watkins
may state that their opinion or opinions is limited to matters of New York,
California, Delaware corporate and federal law.
(c) The Initial Purchasers shall have received
customary comfort letters from PricewaterhouseCoopers, LLP and KPMG Peat Marwick
LLP, dated September 30, 1998 and shall have received a customary comfort letter
dated September 29, 1998, and a customary bring-down comfort letter from Arthur
Anderson LLP, in each case addressed to the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers.
(d) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date; the Issuers shall have
complied in all material respects with all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and subsequent to the date of the most recent
financial statements in the Offering Circular, there shall have been no material
adverse change in the business, condition (financial or other), results of
operations or prospects of the Issuers, taken as a whole, except as set forth
in, or contemplated by, the Offering Circular.
(e) The issuance and sale of the Securities by the
Issuers hereunder shall not be enjoined (temporarily or permanently) on the
Closing Date and no restraining order or other injunctive order shall have been
issued or any action, suit or proceeding shall have been commenced with respect
to this Agreement or any other transactions hereby, before any court or
governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is
given in the Offering Circular, except as described in or as contemplated by the
Offering Circular, none of the Issuers shall have incurred any liabilities or
obligations, direct or contingent (other than in the ordinary course of
business) that are material to the Issuers, taken as a whole, or entered into
any transactions not in the ordinary course of business that are material to the
business, condition (financial or other), results of operations or prospects of
the Issuers, taken as a whole, and, other than as contemplated by the Offering
Circular, there shall not have been any change in the capital stock or long-term
indebtedness of any Issuer that is material
9
<PAGE> 10
to the business, condition (financial or other), results of operations or
prospects of the Issuers, taken as a whole.
(g) Subsequent to the date as of which information is
given in the Offering Circular, the conduct of the business and operations of
the Company or any of its subsidiaries has not been interfered with by strike,
fire, flood, hurricane, accident or other calamity (whether or not insured) or
by any court or governmental action, order or decree, and, except as otherwise
stated therein, the properties of the Company or any of its subsidiaries have
not sustained any loss or damage (whether or not insured) as a result of any
such occurrence, except any such interference, loss or damage which would not
have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a
certificate of the Company, dated the Closing Date, signed on behalf of the
Company by its Vice President and Assistant Secretary of the Company, to the
effect that:
(i) The representations and warranties of the Issuers
in this Agreement are true and correct in all material
respects as if made on and as of the Closing Date (other than
to the extent any such representation or warranty is expressly
made to a certain date), and each Issuer has performed in all
material respects all covenants and agreements and satisfied,
in all material respects, all conditions on their part to be
performed or satisfied hereunder, to the extent a party
thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the
Offering Circular, except as described in the Offering
Circular, no event or events have occurred, nor has any
information become known that, individually or in the
aggregate, would have a Material Adverse Effect;
(iii) The issuance and sale of the Securities by the
Issuers hereunder has not been enjoined (temporarily or
permanently) by any court or governmental agency or body
(including without limitation, the FCC); and
(iv) Subsequent to the respective dates as of which
information is given in the Offering Circular, except in each
case as described in or as contemplated by the Offering
Circular, none of the Issuers has incurred any liabilities or
obligations, direct or contingent, that are material to the
Issuers, taken as a whole, or entered into any transactions
that, individually or in the aggregate, would have a Material
Adverse Effect; and there has been no change in the capital
stock or long-term indebtedness of the Issuers that
individually or in the aggregate would have a Material Adverse
Effect.
(i) On the Closing Date, the Initial Purchasers shall
have received the Registration Rights Agreement executed by the Issuers and such
agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received such
further documents, opinions, certificates and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Issuers as they
shall have heretofore reasonably requested from the Issuers.
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<PAGE> 11
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. The
Company shall furnish to the Initial Purchasers such conformed copies of such
opinions, certificates, letters, schedules, documents and instruments in such
quantities as the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer.
(a) The Initial Purchasers represents and warrants
that it is a "qualified institutional buyer" as defined in Rule 144A promulgated
under the Act ("QIB"). The Initial Purchasers agrees with the Issuers that (i)
it has not and will not solicit offers for, or offer or sell, the Securities by
any form of general solicitation or general advertising (as those terms are used
in Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act; and (ii) it has and will solicit
offers for the Securities only from, and will offer the Securities only to (A)
in the case of offers inside the United States, persons whom it reasonably
believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a QIB, to
whom notice has been given that such sale or delivery is being made in reliance
on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the
case of offers outside the United States, to persons other than U.S. persons
("FOREIGN PURCHASERS," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)); provided, however, that, in
the case of this clause (B), in purchasing such Securities such persons are
deemed to have represented and agreed as provided under the caption "Notice to
Investors" contained in the Offering Circular (each such entity referenced in
this clause (ii), an "ELIGIBLE PURCHASER").
(b) The Initial Purchasers represents and warrants (as
to itself only) with respect to offers and sales outside the United States that
(i) it has complied and will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers Securities or
has in its possession or distributes the Offering Circular or any such other
material, in all cases at its own expense; (ii) the Securities have not been and
will not be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons except in accordance with Regulation S under the Act
or pursuant to an exemption from the registration requirements of the Act; (iii)
it has offered the Securities and will offer and sell the Securities (A) as part
of its distribution at any time and (B) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S and, accordingly, neither it nor any persons
acting on its behalf have engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Securities, and any
such persons have complied and will comply with the offering restrictions
requirement of Regulation S; and (iv) it agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the United States Securities Act of 1933 (the "SECURITIES
ACT") and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of the distribution of the Securities at any time
or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date of the
offering, except in either case in accordance with Regulation
S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them in Regulation S."
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<PAGE> 12
Terms used in this Section 8(b) and not defined in this Agreement have
the meanings given to them in Regulation S.
(c) The Initial Purchasers represent and warrant that
the source of funds being used by it to acquire the Securities does not include
the assets of any "employee benefit plan" (within the meaning of Section 3 of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA")) or any "plan"
(within the meaning of Section 4975 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder (the
"Code")).
9. Indemnification and Contribution.
(a) The Issuers, jointly and severally, will indemnify
and hold harmless the Initial Purchasers and each person or persons who control
the Initial Purchasers within the meaning of the Act or Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which the Initial
Purchasers may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Offering Circular, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, and will reimburse the Initial Purchasers and any control person for
any legal or other expenses reasonably incurred by the Initial Purchasers or
such control person in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Issuers shall not be liable in any such case (and shall be entitled to
reimbursement of advanced expenses, if applicable) to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Offering Circular or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by the Initial
Purchasers expressly for use therein.
(b) The Initial Purchasers will indemnify and hold
harmless each of the Issuers, their respective directors, officers and each
person, if any, who controls any Issuer within the meaning of the Act or
Exchange Act against any losses, claims, damages or liabilities to which any of
the Issuers or their respective directors, officers or controlling persons may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Offering Circular, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers expressly for use therein; and will reimburse the Issuers or any such
director, officer or control person for any legal or other expenses reasonably
incurred by such Issuer or director, officer or control person in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying
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<PAGE> 13
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this
Section 9 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Issuers on the one hand and the Initial
Purchasers on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Issuers on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Initial Purchasers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Initial Purchasers. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers on the
one hand or the Initial Purchasers on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Issuers and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Initial Purchasers
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
investors were offered to investors exceeds the amount of any damages which the
Initial Purchasers have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
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<PAGE> 14
(e) The obligations of the Issuers under this Section
9 shall be in addition to any liability which the Issuers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Initial Purchasers within the meaning of the Act; and the
obligations of the Initial Purchasers under this Section 9 shall be in addition
to any liability which the Initial Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Issuers and to each person, if any, who controls any Issuer within the meaning
of the Act.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Issuers, their respective officers and the Initial Purchasers set forth in this
Agreement or made by or on behalf of it pursuant to this Agreement shall remain
in full force and effect, regardless of (a) any investigation made by or on
behalf of the Issuers, any of their respective officers or directors, the
Initial Purchasers or any controlling person referred to in Section 9 hereof and
(b) delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6 and 9 shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
11. Termination. (a) This Agreement may be terminated in
the sole discretion of the Initial Purchasers by notice to the Issuers given on
or prior to the Closing Date in the event that the Issuers shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder at or prior thereto or, if at
or prior to the Closing Date:
(i) A downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and no such organization shall have publicly
announced that it has under surveillance or review, with
possible negative implications, its rating of any of the
Company's debt securities;
(ii) A suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the
American Stock Exchange or on the NASDAQ Stock Market's
National Market;
(iii)A suspension or material limitation in trading in
the Chancellor Media Corporation's Common Stock on the NASDAQ
Stock Market's National Market;
(iv) A general moratorium on commercial banking
activities declared by either Federal or New York or Texas
state authorities; or
(v) the outbreak or escalation of hostilities
involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any
such event specified in this clause (v) in the judgment of the
Initial Purchasers makes it impracticable or inadvisable to
proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated in the Offering
Circular.
(b) Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to any other party except as
provided in Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The
statements set forth in the first sentence of the last paragraph of text on the
cover pages of the Offering Circular, concerning the terms of the offering by
the Initial Purchasers, the last paragraph on page ii of the Offering Circular,
concerning
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<PAGE> 15
stabilization and over-allotment by the Initial Purchasers, the second paragraph
of text under the caption "Underwriting" in the Offering Circular, concerning
the terms of the offering by the Initial Purchasers, the second sentence of the
fifth paragraph of text under the caption "Underwriting" in the Offering
Circular, concerning market making by the Initial Purchasers, and the eighth
paragraph of text under the caption "Underwriting" in the Offering Circular,
concerning over-allotment and stabilizing transactions by the Initial
Purchasers. constitute the only information furnished on behalf of the Initial
Purchasers to the Issuers for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in
writing and, if sent to the Initial Purchasers, shall be mailed, delivered or
telecopied to Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Corporate Finance Department; if sent to the Issuers, shall be
mailed, delivered or telecopied to the Issuers at Chancellor Media Corporation
of Los Angeles, 300 Crescent Court, Suite 600, Dallas, Texas 75201, Attention:
President.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier; and when
receipt is acknowledged by addressee, if telecopied.
14. Successors. This Agreement shall inure to the benefit
of and be binding upon the Initial Purchasers, each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 9 of this Agreement shall
also be for the benefit of any person or persons who control the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Issuers, their respective officers and any person or persons who control the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Notes from the Initial Purchasers will be deemed a
successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
<PAGE> 16
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company, the Guarantors and the Initial Purchasers.
Very truly yours,
The Company
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ OMAR CHOUCAIR
-------------------------------------
Name: Omar Choucair
Title: Vice President
The Guarantors:
On behalf of the Subsidiary Guarantors
listed on Schedule A hereto:
By: /s/ OMAR CHOUCAIR
-------------------------------------
Name: Omar Choucair
Title: Vice President
The Initial Purchasers:
GOLDMAN, SACHS & CO.
By: /s/ GOLDMAN, SACHS & CO.
-------------------------------
Name:
Title:
16
<PAGE> 17
SCHEDULE A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(all subsidiaries are Delaware corporations except as expressly indicated)
1. Chancellor Media Corporation Of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Martin Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
S-1
<PAGE> 18
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Martin Media (a California limited partnership)
47. Dowling Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Martin & MacFarlane, Inc. (a California corporation)
51. Katz Media Corporation
52. Katz Communications, Inc.
53. Katz Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Christal Radio Sales, Inc.
56. Eastman Radio Sales, Inc.
57. Seltel Inc.
58. Katz Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
S-2
<PAGE> 1
EXHIBIT 4.43
================================================================================
$750,000,000
9% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of September 30, 1998
Among
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
as Issuer
THE GUARANTORS NAMED HEREIN
and
GOLDMAN, SACHS & CO.
as Initial Purchasers
================================================================================
<PAGE> 2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated
as of September 30, 1998, is being entered into among Chancellor Media
Corporation of Los Angeles, a Delaware corporation (the "COMPANY"), each of the
subsidiaries of the Company listed on the signature pages hereto (the
"GUARANTORS" and, together with the Company, the "ISSUERS") and Goldman, Sachs &
Co. (the "INITIAL PURCHASERS").
This Agreement is being entered into in connection with the
Purchase Agreement, dated as of September 25, 1998, among the Company, the
Guarantors and the Initial Purchasers (the "PURCHASE AGREEMENT"), which provides
for the sale by the Company to the Initial Purchasers of $750,000,000 aggregate
principal amount of the Company's 9% Senior Subordinated Notes Due 2008 (the
"NOTES"). In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to purchase the Notes
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL INTEREST: See Section 4(a) hereof.
ADVICE: See the last paragraph of Section 5 hereof.
AGREEMENT: See the first introductory paragraph hereto.
APPLICABLE PERIOD: See Section 2(b) hereof.
CLOSING DATE: The Closing Date as defined in the Purchase
Agreement.
COMPANY: See the first introductory paragraph hereto.
EFFECTIVENESS DATE: The 180th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a) hereof.
EVENT DATE: See Section 4(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: See Section 2(a) hereof.
EXCHANGE OFFER: See Section 2(a) hereof.
EXCHANGE REGISTRATION STATEMENT: See Section 2(a) hereof.
<PAGE> 3
FILING DATE: The 120th day after the Issue Date.
GUARANTORS: See the first introductory paragraph hereto.
HOLDER: Any holder of a Registrable Note or Registrable Notes.
INDEMNIFIED PERSON: See Section 7(c) hereof.
INDEMNIFYING PERSON: See Section 7(c) hereof.
INDENTURE: The Indenture, dated as of September 30, 1998 among
the Company, the Guarantors and The Bank of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
INITIAL PURCHASERS: See the first introductory paragraph
hereto.
INSPECTORS: See Section 5(o) hereof.
ISSUE DATE: The date on which the Notes were sold to the
Initial Purchasers pursuant to the Purchase Agreement.
ISSUERS: See the first introductory paragraph hereto.
NASD: See Section 5(t) hereof.
NOTES: See the second introductory paragraph hereto.
PARTICIPANT: See Section 7(a) hereof.
PARTICIPATING BROKER-DEALER: See Section 2(b) hereof.
PERSON: An individual, corporation, partnership, limited
liability company, trust, or joint venture, or a governmental agency or
political subdivision thereof or other legal entity.
PRIVATE EXCHANGE: See Section 2(b) hereof.
PRIVATE EXCHANGE NOTES: See Section 2(b) hereof.
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the second introductory paragraph
hereto.
RECORDS: See Section 5(o) hereof.
2
<PAGE> 4
REGISTRABLE NOTES: Each Note upon original issuance of the
Notes and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(v) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(v) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note or Private Exchange Note, as the
case may be, has been declared effective by the SEC and such Note (unless such
Note was not tendered for exchange by the Holder thereof), Exchange Note or
Private Exchange Note, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in compliance with Rule 144
or may be sold pursuant to Rule 144(k), (iii) such note has been exchanged for
an Exchange Note or Exchange Notes pursuant to an Exchange Offer and is entitled
to be resold without complying with the prospectus delivery requirements of the
Securities Act (iv) such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the Indenture.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Guarantors, including, but not limited to, the Exchange
Registration Statement and any registration statement filed with the SEC
pursuant to the provisions of this Agreement, including post-effective
amendments, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(c) hereof.
SHELF REGISTRATION: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
3
<PAGE> 5
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) The Company agrees to file with the SEC no later than the
Filing Date an offer to exchange (the "EXCHANGE OFFER") any and all of the
Registrable Notes (other than the Private Exchange Notes, if any) for a like
aggregate principal amount of debt securities of the Company that are identical
in all material respects to the Notes (the "EXCHANGE NOTES") (and that are
entitled to the benefits of the Indenture or a trust indenture that is identical
in all material respects to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and that, in either case, has been qualified under the TIA),
except that the Exchange Notes (other than Private Exchange Notes, if any) shall
have been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Exchange
Offer shall be registered under the Securities Act on an appropriate form (the
"EXCHANGE REGISTRATION STATEMENT") and shall comply with all applicable tender
offer rules and regulations under the Exchange Act. The Issuers agree to use
their reasonable best efforts to (x) cause the Exchange Registration Statement
to be declared effective under the Securities Act on or before the Effectiveness
Date; (y) keep the Exchange Offer open for at least 20 business days (or longer
if required by applicable law) after the date that notice of the Exchange Offer
is mailed to Holders; and (z) consummate the Exchange Offer on or before the
225th day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement.
Each Holder who participates in the Exchange Offer will be
required to represent that any Exchange Notes received by it will be acquired in
the ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes in violation of
the provisions of the Securities Act and that such Holder is not an affiliate of
the Company or any Guarantor within the meaning of the Securities Act and is not
acting on behalf of any persons or entities who could not truthfully make the
foregoing representations. In addition, each broker-dealer that desires to
participate in the Exchange Offer and to receive Exchange Notes will be required
to represent that the Notes being tendered by such broker-dealer were acquired
in ordinary trading or market-making activities and not in transactions directly
with any Issuer or an Affiliate thereof (a "PARTICIPATING BROKER-DEALER"). A
broker-dealer that is not able to make the foregoing representation will not be
permitted to participate in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply mutatis
mutandis, solely with respect to Registrable Notes that are Private Exchange
Notes and Exchange Notes as to which clause 2(c) hereof applies, the Company
shall have no further obligation to register Registrable Notes (other than
Private Exchange Notes and other than in respect of any Exchange Notes as to
which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities
other than the Exchange Notes shall be included in the Exchange Registration
Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the publicly, disseminated positions taken or
4
<PAGE> 6
policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer. Such "Plan of Distribution" section shall also expressly permit
the use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers,
and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes.
The Issuers shall use their reasonable best efforts to keep
the Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
such period shall not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers holds any Notes acquired by it and having, or that are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Issuers shall, upon the request of the Initial
Purchasers, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to the Initial Purchasers in exchange (the
"PRIVATE EXCHANGE") for such Notes held by the Initial Purchasers a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and that
are issued pursuant to the same Indenture as the Exchange Notes or an indenture
identical to the Indenture in all material respects as permitted by the last
paragraph of this Section 2(b)) except for the placement of a restrictive legend
on such Private Exchange Notes. The Private Exchange Notes shall bear the same
CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the Issue Date.
In connection with the Exchange offer, the Issuers shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
5
<PAGE> 7
(2) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder so
accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (1) the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture and (2) the Private Exchange Notes shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes shall vote and consent together on all matters as one class and that
none of the Exchange Notes, the Private Exchange Notes or the Notes will have
the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company is not permitted
to effect an Exchange offer, (ii) the Exchange Offer is not consummated within
225 days of the Issue Date, (iii) any holder of Private Exchange Notes so
requests at any time after the consummation of the Private Exchange, (iv) the
Holders of not less than a majority in aggregate principal amount of the
Registrable Notes determine that the interests of the Holders would be
materially adversely affected by consummation of the Exchange Offer or (v) in
the case of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Issuers or as an "underwriter"
within the meaning of the Securities Act), then the Company shall promptly
deliver to the Holders and the Trustee written notice thereof (the "SHELF
NOTICE") to the Trustee and in the case of clauses (i), (ii) and (iv), all
Holders, in the case of clause (iii), the Holders of the Private Exchange Notes
and in the case of clause (v), the affected Holder, and shall file a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
reasonably practicable file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Notes (the "SHELF REGISTRATION"). If the Issuers shall not have
yet filed an Exchange Registration Statement, the Company shall use its
reasonable best efforts to file with the SEC the Shelf Registration on or prior
to the Filing Date. The Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall not permit
any securities other than the Registrable Notes to be included in the Shelf
Registration.
The Issuers shall use their reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date (or, in the case of a Shelf Registration
pursuant to Shelf Notice delivered less than 90 days before the Effectiveness
Date, on or prior to the 90th day following the Shelf Notice (the "SHELF
EFFECTIVENESS DATE")) and to keep the Shelf Registration continuously effective
under the Securities Act until the date that is two years from the Issue Date,
subject to extension pursuant to the last paragraph of Section 5 hereof (the
"EFFECTIVENESS PERIOD"),
6
<PAGE> 8
or such shorter period ending when all Registrable Notes covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in the
Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Issuers shall use their respective best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any underwriter
of such Registrable Notes.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Issuers fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers agree to pay, as liquidated damages, additional interest on the
Notes ("ADDITIONAL INTEREST") under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Registration Statement nor the
Shelf Registration has been filed on or prior to the Filing Date (or,
in the case of a Shelf Registration pursuant to a Shelf Notice
delivered less than 45 days prior to the Filing Date, on or prior to
the 45th day following such Shelf Notice (the "SHELF FILING DATE")),
then, commencing on the 121st day after the Issue Date (or, if
applicable, on the 1st day after the Shelf Filing Date), Additional
Interest shall accrue on the Notes over and above the stated interest
at a rate of 0.50% per annum for the first 90 days immediately
following the Filing Date (or, if applicable, the first 90 days
following the Shelf Filing Date), such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the
Shelf Registration is declared effective by the SEC on or prior to the
Effectiveness Date (or, if applicable, the Shelf Effectiveness Date),
then, commencing on the 181st day after the Issue Date (or, if
applicable, the 1st day after the Shelf Effectiveness Date), Additional
Interest shall accrue on the Notes included or that should have been
included in such Registration Statement over and above the stated
interest at a rate of 0.50% per annum for the first 90 days immediately
following the Effectiveness Date (or, if applicable, the first 90 days
following the Shelf Effectiveness Date), such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period; and
(iii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 225th day after the Issue Date or (B) the
Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue (over and
above any interest otherwise payable on such Notes) at a rate of 0.50%
per annum on (x) the 226th day after the Issue Date
7
<PAGE> 9
with respect to the Notes validly tendered and not exchanged by the
Company, in the case of (A) above, or (y) the day the Exchange
Registration Statement ceases to be effective in the case of (B) above,
or (z) the day such Shelf Registration ceases to be effective, in the
case of (C) above, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each such subsequent
90-day period (it being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note that is the subject of a
Shelf Notice is then covered by an effective Shelf Registration, no
Additional Interest shall accrue on such Note);
provided, however, that the Additional Interest rate on any affected Note may
not exceed at any one time in the aggregate 1.0% per annum; and provided,
further, that (1) upon the filing of the Exchange Registration Statement or a
Shelf Registration (in the case of clause (i) of this Section 4(a)), (2) upon
the effectiveness of the Exchange Registration Statement or the Shelf
Registration (in the case of clause (ii) of this Section 4(a)), or (3) upon the
exchange of Exchange Notes for all Notes tendered and not validly withdrawn (in
the case of clause (iii)(A) of this Section 4(a)), or upon the effectiveness of
the Exchange Registration Statement that had ceased to remain effective (in the
case of (iii)(B) of this Section 4(a)), or upon the effectiveness of the Shelf
Registration that had ceased to remain effective (in the case of (iii)(C) of
this Section 4(a)), Additional Interest on the affected Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
(b) The Issuers shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of this
Section 4 shall be payable to the Holders of affected Notes as of the relevant
record date in cash semi-annually on the same original interest payment dates as
the Notes (as set forth in the Indenture) commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the affected Registrable Notes of such
Holders, multiplied by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months and, in the case
of a partial month, the actual number of days elapsed), and the denominator of
which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:
(a) Prepare and file with the SEC on or prior to the Filing
Date (or, if applicable, the Shelf Filing Date) a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that, if
(1) such filing is made pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement (in the case of a
Registration Statement filed pursuant to Section 3 hereof) or each such
Participating Broker-Dealer (in the case where a Prospectus contained in an
Exchange Registration Statement filed pursuant to Section 2 hereof is required
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<PAGE> 10
to be delivered by Participating Broker-Dealers), as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least five business days prior to such filing). The Issuers
shall not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period or until consummation of the Exchange Offer, as the case may be, cause
the related Prospectus to be supplemented by any Prospectus supplement required
by applicable law and, as so supplemented, to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to them with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Issuers shall be
deemed not to have used their best efforts to keep a Registration Statement
effective during the Applicable Period or Effectiveness Period, as applicable,
if they voluntarily take any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period, unless such action is required by applicable
law or unless the Issuers comply with this Agreement, including without
limitation, the provisions of paragraph 5(k) hereof and the last paragraph of
this Section 5; provided, however, that the foregoing shall not apply to actions
taken by the Issuers in good faith and for valid business reasons (not including
avoidance of their obligations hereunder), including without limitation, the
acquisition or divestiture of assets, so long as the Issuers, within 90 days
thereafter comply with the requirements of Section 5(k). Any such period during
which the Issuers fail to keep the Registration Statement effective and usable
for offers and sales of Registrable Notes or Exchange Notes during the
Applicable Period or Effectiveness Period, as applicable, is referred to as a
"Suspension Period." A Suspension Period shall commence on and include the date
that the Issuers give notice that the Registration Statement is no longer
effective or the prospectus included therein is no longer usable for offers and
sales of Registrable Notes or Exchange Notes and shall end on the date when each
Holder of Registrable Notes or Exchange Notes covered by such Registration
Statement either receives copies of the amended or supplemental prospectus
contemplated by Section 5(k) or is advised in writing by the Issuers that the
use of the prospectus may be resumed. If one or more Suspension Periods occur,
the Applicable Period or Effectiveness Period, as applicable, shall be extended
by the aggregate number of days included in each such Suspension Period.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the selling Holders of Registrable
Notes, or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any event within
two business days), and confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Issuers, one conformed copy of such Registration Statement or
post-effective amendment, including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
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<PAGE> 11
exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a prospectus is required
by the Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers
upon written notice by any such Participating Broker-Dealer of a resale the
representations and warranties of the Company contained in any agreement
(including any underwriting agreement), contemplated by Section 5(n) hereof
cease to be true and correct, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and (vi) of the determination by the Issuers that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use their reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable Notes
or the Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters, if any, or the Holders
of a majority in aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters, if any, such Holders, or counsel for any
of them, reasonably request to be included therein, and (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Issuers have received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer who so requests
and to their respective counsel and each managing underwriter, if any, at the
sole expense of the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be
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<PAGE> 12
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Issuers hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers if any, in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating Broker-Dealers of
the Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable best efforts to register or qualify such
Registrable Notes (and to cooperate with selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes) for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any sealing Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuers agree to cause
their counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, however, that none of the Issuers shall be required to (A)
qualify generally to do business in any jurisdiction where any such Issuer is
not then so qualified, (B) take any action that would subject any such Issuer to
general service of process in any such jurisdiction where any such Issuer is not
then so subject or (C) become subject to taxation in any such jurisdiction where
any such Issuer is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the Holders thereof or the underwriter or underwriters, if any, to dispose of
such Registrable Notes, except as may be required solely as a consequence of the
nature of a selling Holder's business, in which case the Issuers will cooperate
in all reasonable respects (at the sole expense of such Holder) with the filing
of such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be
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<PAGE> 13
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, (A) upon the occurrence of
any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof or (B) a
Suspension Period remains in effect more than 90 days after the occurrence
thereof, as promptly as practicable prepare and (subject to Section 5(a) hereof)
file with the SEC, at the sole expense of the Issuers, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold thereunder or to
the purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Use their reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes or Exchange Notes, as the case may be, in
a form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Notes or Exchange Notes, as the case may be.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuers (including any
acquired business, properties or entities, if applicable) and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii) obtain
the written opinion of counsel to the Issuers and written updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of debt securities
similar to the Notes and such other matters as may be reasonably requested by
the managing underwriter or underwriters; (iii) obtain "cold comfort" letters
and updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuers or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of debt securities
similar to the Notes and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration Statement and
the managing
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<PAGE> 14
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section 7. The above shall be done at each closing
under such underwriting agreement or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
instruments of the Issuers and their subsidiaries (collectively, the "RECORDS")
as shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the respective officers, directors and
employees of the Issuers and their subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Issuers determine, in good faith, to be confidential
and any Records that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena or
other final order from a court of competent jurisdiction, (iii) disclosure of
such information is, in the reasonable, good faith opinion of counsel for any
Inspector, necessary in connection with any action, claim, suit or proceeding,
directly or indirectly, involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement, or any transactions contemplated
hereby or arising hereunder, or (iv) the information in such Records has been
made generally available to the public other than in violation of any obligation
of confidentiality, hereunder or otherwise. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it for any
purpose other than the sale or exchange of Notes pursuant to an Exchange Offer
or Shelf Registration. Each selling Holder of such Registrable Notes and each
such Participating Broker-Dealer will be required to further agree that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, promptly give notice to the Issuers and allow the Issuers to
undertake appropriate action to prevent disclosure of the Records deemed
confidential at the Issuers sole expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange Offer
or first Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture and
the Holders of the Registrable Notes, to effect such changes to such indenture
as may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their reasonable best efforts to cause
such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Notes are sold
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<PAGE> 15
to underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Company
(or to such other Person as directed by the Issuers) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Issuers
shall mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(s) Reasonably cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Notes
covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any Registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request and, in such event,
shall have no further obligation. The Issuers may exclude from such registration
the Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. Each seller
as to which any Shelf Registration is being effected agrees to furnish promptly
to the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Issuers of (A) the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof
or (B) a Suspension Period under Section 5(b), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's-receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "ADVICE") by the Issuers that the use of the applicable
Prospectus may be resumed and has received copies of any amendments or
supplements thereto. In the event the Issuers shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
6. Registration Expenses
(a) Except as otherwise set forth herein, all fees and
expenses incident to the performance of or compliance with this Agreement by the
Issuers shall be borne by the issuers whether or
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<PAGE> 16
not the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h) hereof, in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or sold by any Participating
Broker-Dealer, as the case may be, (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Issuers and reasonable
fees and disbursements of special counsel for the sellers of Registrable Notes
(subject to the provisions of Section 6(b) hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(n)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi) rating
agency fees, if-any, and any fees associated with making the Registrable Notes
or Exchange Notes eligible for trading through The Depository Trust Company,
(vii) Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Issuers, (ix)
internal expenses of the Issuers (including, without limitation, all salaries
and expenses of officers and employees of the Issuers performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Issuers shall (i) reimburse the Holders of the
Registrable Notes being registered in a Shelf Registration for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Registrable Notes to be included in such Registration Statement and (ii)
reimburse out-of-pocket expenses (other than legal expenses or selling
commissions or discounts) of Holders of Registrable Notes incurred in connection
with the registration and sale of the Registrable Notes pursuant to a Shelf
Registration or in connection with the exchange of Registrable Notes pursuant to
the Exchange Offer.
7. Indemnification
(a) The Issuers agree, jointly and severally, to indemnify and
hold harmless each Holder of Registrable Notes offered pursuant to a Shelf
Registration Statement and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, the affiliates, directors, officers, agents,
representatives and employees of each such Person or its affiliates, and each
other Person, if any, who controls any such Person or its affiliates within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "PARTICIPANT") against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon
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<PAGE> 17
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement pursuant to which
the offering of such Registrable Notes or Exchange Notes, as the case
may be, is registered (or any amendment thereto) or related Prospectus
(or any amendments or supplements thereto) or any related preliminary
prospectus, or
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
and will reimburse, as incurred, each Participant and each such controlling
person for any legal or other expenses incurred by the Participant or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Issuers will not be
required to indemnify a Participant if (i) such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Issuers in writing by or on behalf
of such Participant expressly for use therein or (ii) if such Participant sold
to the person asserting the claim the Registrable Notes or Exchange Notes that
are the subject of such claim and such untrue statement or omission or alleged
untrue statement or omission was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto, and the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceeding and it is established by the Issuers in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person unless such failure to deliver or provide a copy of the Prospectus
(as amended or supplemented) was a result of noncompliance by the Issuers with
Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless each of the Issuers, their directors and officers
and each Person who controls each of the Issuers within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Issuers to each Participant, but only (i) with
reference to information relating to such Participant furnished to the Issuers
in writing by or on behalf of such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto or any
preliminary prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company. The liability
or any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or Exchange Notes
giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Person against whom such indemnity may be
sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability that it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the forfeiture of any substantial rights or defenses by the
Indemnifying Person and the
16
<PAGE> 18
Indemnifying Person was not otherwise aware of such action or claim). In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person shall have failed within a reasonable period of time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, unless there
exists a conflict among Indemnified Persons, the Indemnifying Person shall not,
in connection with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons and that all such
fees and expenses shall be reimbursed promptly as they are incurred. Any such
separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes and Exchange Notes sold by all such Participants and any
such separate firm for the Issuers, its directors, its officers and such control
Persons of the Issuers shall be designated in writing by the Issuers. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel as
contemplated by the third sentence of this paragraph, the indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Person is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written release of
such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason available by its terms,
but is held to be unenforceable, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or such Participant or such
17
<PAGE> 19
other Indemnified Person, as the case may be, on the other, the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability that the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rule 144 and 144A
Each of the Issuers covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuers are not required to file such reports, it will, upon
the request of any Holder of Registrable Notes, make publicly available annual
reports and such information, documents and other reports of the type specified
in Sections 13 and 15,(d) of the Exchange Act. Each of the Issuers further
covenants for so long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable Notes in connection
with any sale thereof and any prospective purchaser of such Registrable Notes
from such Holder or beneficial owner the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Registrable Notes
pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in Aggregate principal amount of such
Registrable Notes included in such offering and reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
18
<PAGE> 20
10. Miscellaneous
(a) No Inconsistent Agreements. None of the Issuers has
entered, as of the date hereof, and none of the Issuers will, after the date of
this Agreement, enter into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable Notes
in this Agreement or otherwise conflicts with the provisions hereof. None of the
Issuers has entered and none of the Issuers will enter into any agreement with
respect to any of its securities that will grant to any Person piggyback
registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of the
Issuers will, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Facsimile No: (212) 902-3000
Attention: Special Executions
with a copy to:
Latham & Watkins
1001 Pennsylvania Avenue,. N.W.
Suite 1300
Washington, D.C. 20004-2505
Facsimile No: (202) 637-2201
Attention: John D. Watson, Jr., Esq.
19
<PAGE> 21
2. if to the Initial Purchasers, at the addresses
specified in Section 10(d)(1);
3. if to the Company, as follows:
Chancellor Media Corporation of Los Angeles
300 Crescent Court
Suite 600
Dallas, Texas 75201
Facsimile No: (214) 922-8701
Attention: Matthew E. Devine, Chief Financial
Officer
with copies to:
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201
Facsimile No: (214) 746-7777
Attention: Michael A. Saslaw, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto; provided, however, that this Agreement shall not inure to the benefit of
or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall
20
<PAGE> 22
in no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
.provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuers or their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Issuers on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
21
<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE COMPANY
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ OMAR CHOUCAIR
-----------------------------------------
Name: Omar Choucair
Title: Vice President
THE GUARANTORS:
On behalf of the Subsidiary Guarantors listed
on Exhibit A hereto:
By: /s/ OMAR CHOUCAIR
-----------------------------------------
Name: Omar Choucair
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
GOLDMAN, SACHS & CO.
By: /s/ GOLDMAN, SACHS & CO.
-----------------------------------------
Name:
Title:
22
<PAGE> 24
EXHIBIT A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(all subsidiaries are Delaware corporations except as expressly indicated)
1. Chancellor Media Corporation Of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Martin Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
A-1
<PAGE> 25
42. Chancellor Media Air Services Corporation
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Martin Media (a California limited partnership)
47. Dowling Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Martin & MacFarlane, Inc. (a California corporation)
51. Katz Media Corporation
52. Katz Communications, Inc.
53. Katz Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Christal Radio Sales, Inc.
56. Eastman Radio Sales, Inc.
57. Seltel Inc.
58. Katz Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
A-2
<PAGE> 1
EXHIBIT 5.1
November 9, 1998
Chancellor Media Corporation of Los Angeles
300 Crescent Court, Suite 600
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as counsel to Chancellor Media Corporation of
Los Angeles, a Delaware corporation (the "Company"), in connection with the
preparation and filing by the Company and by the guarantors listed on Exhibit A
attached hereto (the "Exhibit A Guarantors") and the guarantors listed on
Exhibit B attached hereto (the "Exhibit B Guarantors," and, together with the
Exhibit A Guarantors, the "Guarantors"), of a Registration Statement on Form
S-4 (the "Registration Statement"), to be filed with the Securities and
Exchange Commission on November 9, 1998 under the Securities Act of 1933, as
amended, relating to $750,000,000 aggregate principal amount of 9% Senior
Subordinated Notes due 2008 (the "New Notes") of the Company and the related
guarantees thereof by the Guarantors (the "Guarantees"). The Company and the
Guarantors propose to offer (the "Exchange Offer"), upon the terms set forth in
the Prospectus contained in the Registration Statement, to exchange $1,000
principal amount of New Notes and the related Guarantees for each $1,000
principal amount of issued and outstanding 9% Senior Subordinated Notes due
2008 of the Company (the "Old Notes") and the related guarantees thereof by the
Guarantors. The New Notes and the related Guarantees will be issued under the
Indenture, dated September 30, 1998, by and among the Company, the Guarantors
and The Bank of New York (the "Trustee") (as amended or supplemented to the
date hereof, the "Indenture").
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Indenture, the form of New
Notes set forth in the Indenture and such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company and the
Guarantors, and have made such inquiries of such officers and representatives
as we have deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or
<PAGE> 2
Chancellor Media Corporation of Los Angeles
November 9, 1998
Page 2
photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Company and the Guarantors.
We have also assumed (i) the due incorporation or formation and valid existence
of the Company and the Guarantors, (ii) that the Exhibit B Guarantors have the
requisite corporate power and authority to enter into and perform the
Indenture, (iii) the due authorization, execution and delivery of the Indenture
by the Exhibit B Guarantors and (iv) that the issuance of the Guarantees upon
consummation of the Exchange Offer has been duly authorized by the Exhibit B
Guarantors.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. Assuming that the Indenture has been duly authorized,
executed and delivered by the Trustee, when (i) the New Notes issuable upon
consummation of the Exchange Offer have been duly executed by the Company and
authenticated by the Trustee in accordance with the terms of the Indenture and
(ii) the New Notes issuable upon consummation of the Exchange Offer have been
duly delivered against receipt of Old Notes surrendered in exchange therefor,
the New Notes issuable upon consummation of the Exchange Offer will constitute
the legal, valid and binding obligations of the Company, enforceable against it
in accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).
2. Assuming that the Indenture has been duly authorized,
executed and delivered by the Trustee, when (i) the New Notes issuable upon
consummation of the Exchange Offer have been duly executed by the Company and
authenticated by the Trustee in accordance with the terms of the Indenture and
(ii) the New Notes issuable upon consummation of the Exchange Offer have been
duly delivered against receipt of Old Notes surrendered in exchange therefor,
the Guarantees issuable upon consummation of the Exchange Offer will constitute
the legal, valid and binding obligations of the Guarantors, enforceable against
them in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
The opinions expressed herein are limited to the laws of the
State of New York, the corporate laws of the State of Delaware and the federal
laws of the United States, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
<PAGE> 3
Chancellor Media Corporation of Los Angeles
November 9, 1998
Page 3
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
<PAGE> 4
Chancellor Media Corporation of Los Angeles
November 9, 1998
Page 4
Exhibit A
---------
Chancellor Media Corporation Of The Lone Star State
KZPS/KDGE License Corp.
Chancellor Media Corporation of California
KIOI License Corp.
Chancellor Media Corporation of Illinois
Chancellor Media Illinois License Corp.
Chancellor Media Corporation of Dade County
WVCG License Corp.
Chancellor Media Corporation of Massachusetts
Chancellor Media Pennsylvania License Corp.
Chancellor Media Corporation of Miami
WEDR License Corp.
Chancellor Media Corporation of Houston
Chancellor Media Corporation of the Keystone State
Chancellor Media Corporation of New York
Chancellor Media Corporation of Charlotte
WIOQ License Corp.
Chancellor Media Corporation of Washington, D.C.
Chancellor Media Corporation of St. Louis
Chancellor Media Corporation of Michigan
Chancellor Media / WAXQ Inc.
WAXQ License Corp.
Chancellor Media / KCMG Inc.
Chancellor Media / Riverside Broadcasting Co., Inc.
WLTW License Corp.
Chancellor Media Corporation of the Capital City
Chancellor Media D.C. License Corp.
Chancellor Media Licensee Company
Chancellor Media/Trefoil Communications, Inc.
Chancellor Media/Shamrock Broadcasting, Inc.
Chancellor Media/Shamrock Radio Licenses, Inc.
Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
Chancellor Media/Shamrock Broadcasting of Texas, Inc.
The AMFM Radio Networks, Inc.
Chancellor Media Air Services Corporation
Chancellor Merger Corp.
<PAGE> 5
Chancellor Media Corporation of Los Angeles
November 9, 1998
Page 5
Exhibit B
---------
Broadcast Architecture, Inc.
Martin Media
Dowling Company Incorporated
Nevada Outdoor Systems, Inc.
MW Sign Corp.
Martin & MacFarlane, Inc.
Katz Media Corporation
Katz Communications, Inc.
Katz Millennium Marketing, Inc.
Amcast Millennium Sales, Inc.
Christal Radio Sales, Inc.
Eastman Radio Sales, Inc.
Seltel Inc.
Katz Cable Corporation
The National Payroll Company, Inc.
Chancellor Media Radio Licenses, LLC
KLOL License Limited Partnership
WTOP License Limited Partnership
Chancellor Media/Shamrock Radio Licenses, LLC
Radio 100, L.L.C.
Chancellor Media Outdoor Corporation
Chancellor Media Nevada Sign Corporation
Chancellor Media MW Sign Corporation
Chancellor Media Martin Corporation
Western Poster Service, Inc.
Chancellor Media Whiteco Outdoor Corporation
Chancellor Media of Houston Limited Partnership
<PAGE> 1
EXHIBIT 10.48
EMPLOYMENT AGREEMENT
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
JAMES E. DE CASTRO
This Employment Agreement (this "Agreement") is made and
entered into on May 18, 1998, to be effective as of April 17, 1998 (the
"Effective Date"), between Chancellor Media Corporation, a Delaware corporation
(the "Company"), Chancellor Media Corporation of Los Angeles, a Delaware
corporation ("Los Angeles") and James E. de Castro (the "Executive"), residing
at 1025 Seneca Road, Wilmette, Illinois 60091.
W I T N E S S E T H:
WHEREAS, the Company, Los Angeles and the Executive are
parties to an existing Employment Agreement dated as of September 4, 1997 (the
"Prior Employment Agreement"); and
WHEREAS, in connection with certain management changes at the
Company, the Company and the Executive desire to amend and restate in its
entirety the Prior Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the parties agree as
follows:
1. DEFINITIONS
The following terms used in this Agreement shall have the
meaning specified below unless the context clearly indicates the contrary:
"Annual Bonus" shall mean the annual incentive bonus payable
to the Executive described in Section 4.
"Average Bonus" shall mean the greater of (a) (i) the total of
the Annual Bonuses paid hereunder with respect to the Employment Term, divided
by (ii) the length of such portion of the Employment Term in years (including
fractions) as falls on or prior to the last December 31 thereof and (b) One
Million Six Hundred Thousand Dollars ($1,600,000).
"Base Salary" shall mean the annual base salary payable to the
Executive at the rate set forth in Section 4.
<PAGE> 2
"Board" shall mean the Board of Directors of the Company.
"Broadcast Cash Flow" for any accounting period shall mean
station operating income for such accounting period for the stations owned or
operated by the Company as of the last day of such accounting period on a
consolidated basis excluding depreciation, amortization and corporate, general
and administrative expenses, calculated in a manner consistent with the
presentation of "broadcast cash flow" in the Company's periodic reports filed
with the Securities Exchange Commission.
"Broadcast Cash Flow Target" for any accounting period shall
mean one hundred five percent (105%) of the station operating income for the
corresponding accounting period falling twelve months earlier on a consolidated
basis, excluding depreciation, amortization and corporate, general and
administrative expenses, calculated in a manner consistent with the presentation
of "broadcast cash flow" in the Company's periodic reports filed with the
Securities Exchange Commission, with respect to the stations owned or operated
by the Company as of the last day of the accounting period for which the
Broadcast Cash Flow Target is calculated.
"Cause" shall mean the Executive's (a) habitual neglect of his
material duties or failure to perform his material obligations under this
Agreement, (b) refusal or failure to follow lawful directives of the Board, (c)
commission of an act of fraud, theft or embezzlement, or (d) conviction of a
felony or other crime involving moral turpitude; provided, however, that the
Company shall give the Executive written notice of any actions alleged to
constitute Cause under subsections (a) and (b) above, and the Executive shall
have a reasonable opportunity (as specified by the Compensation Committee) to
cure any such alleged Cause.
"Change in Control" shall mean (a) the sale, lease or other
transfer of all or substantially all of the assets of the Company to any person
or group (as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended); (b) the adoption by the stockholders of the Company of
a plan relating to the liquidation or dissolution of the Company; (c) the merger
or consolidation of the Company with or into another entity or the merger of
another entity into the Company or any subsidiary thereof with the effect that
immediately after such transaction the stockholders of the Company immediately
prior to such transaction (or their Related Parties) hold less than fifty
percent (50%) of the total voting power of all securities generally entitled to
vote in the election of directors, managers or trustees of the entity surviving
such merger or consolidation; (d) the acquisition by any person or group of more
than fifty percent (50%) of the voting power of all securities of the Company
generally entitled to vote in the election of directors of the Company; or (e)
the majority of the Board is composed of members who (i) have served less than
twelve (12) months and (ii) were not approved by a majority of the Board at the
time of their election or appointment.
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"Change in Operations" shall mean a change in the business
operating strategies of the Company (e.g. material cost controls or other
material restrictions on the Company's ability to increase its gross revenues)
which are imposed upon the Executive without his consent, and, in his reasonable
judgement, are fundamentally different from the business operating strategies in
effect at the Company on the Effective Date; provided, however, any expansion of
the Company's business into other media businesses, including, without
limitation, radio stations in small- or medium-sized markets, television,
outdoor advertising, and international media opportunities, shall not constitute
a Change in Operations. Any dispute as to whether a Change of Operations has
occurred shall be resolved pursuant to Section 14.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Common Stock" shall mean $0.01 par value common stock of the
Company.
"Compensation Committee" shall mean the Compensation Committee
of the Board.
"Consumer Price Index" shall mean the Consumer Price Index for
All Urban Consumers (1982-84=100) for all cities as reported by the United
States Bureau of Labor Statistics.
"Contract Year" shall mean each twelve (12) consecutive month
period during the Employment Term which begins on the Effective Date and each
annual anniversary thereof.
"Employment Inducements" shall mean any compensation,
including, without limitation, signing bonuses and stock options, that are paid
or granted to senior officers of the Company in connection with such officers'
initial hiring by the Company, or in connection with any amendments to or
extensions of the term of such senior officers' employment agreements with the
Company.
"Employment Term" shall mean the period beginning on the
Effective Date and ending on the close of business on the effective date of the
Executive's termination of employment with the Company.
"Excise Tax" shall mean the taxes imposed by Code Section
4999.
"Expiration Date" shall have the meaning ascribed to such term
in Section 2.
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"Good Reason" shall mean (a) the Company's material breach of
any provision hereof, (b) the Executive no longer directly reporting to Jeffrey
A. Marcus or Thomas O. Hicks, (c) any adverse change in the Executive's job
responsibilities, duties, functions, status, offices, title, perquisites or
support staff, (d) relocation of the Executive's regular work address by more
than ten (10) miles without his consent, (e) a Change in Operations, (f) the
Executive's failure, at any time, to be permitted to serve as a member of the
Board or (g) a Change in Control; provided, however, that the Executive shall
give the Company written notice of any actions (other than those set out in
subsections (e) or (g) above) alleged to constitute Good Reason and the Company
shall have a reasonable opportunity to cure any such alleged Good Reason.
"Option Agreement" shall mean the agreement between the
Executive and the Company pursuant to which any Option is granted to the
Executive.
"Option Plan" shall mean the 1998 Chancellor Media Corporation
Non-Qualified Stock Option Plan, as amended from time to time, and any successor
thereto, subject to obtaining stockholder's approval of the Option Plan (which
will be submitted to the Company's stockholders at the 1998 annual meeting of
stockholders with the recommendation of the Board).
"Options" shall mean the non-qualified stock options to be
granted to the Executive hereunder.
"Permanent Disability" shall mean the Executive's inability to
perform the duties contemplated by this Agreement by reason of a physical or
mental disability or infirmity which has continued for more than ninety (90)
working days (excluding vacation) in any twelve (12) consecutive month period as
determined by the Board. The Executive agrees to submit such medical evidence
regarding such disability or infirmity as is reasonably requested by the Board.
"Prior Employment Agreement" shall be as defined in the
Recitals to this Agreement.
"Related Parties" shall mean with respect to any person (a)
the spouse and lineal ascendants and descendants of such person, and any sibling
of any of such persons and (b) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or persons
beneficially holding an eighty percent (80%) or more controlling interest of
which consist of persons referred to in subsection (a) above.
"Termination of Employment" shall mean the first to occur of
the following events:
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(a) the date of death of the Executive;
(b) the effective date specified in the Company's
written notice to the Executive of the termination of his employment as
a result of his Permanent Disability, which effective date shall not be
earlier than the ninety-first (91st) working day (excluding vacation)
following the commencement of the Executive's inability to perform his
duties hereunder;
(c) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment without Cause;
(d) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment for Cause;
(e) the effective date specified in the Executive's
written notice to the Company of the Executive's termination of his
employment for Good Reason;
(f) the effective date specified in the Executive's
written notice to the Company of the Executive's termination of his
employment without Good Reason; and
(g) the date the Executive's employment terminates
pursuant to Section 2.
"Termination without Cause" shall mean a termination by the
Company of the Executive's employment without Cause.
2. EMPLOYMENT
The Company agrees to continue the employment of the Executive, and the
Executive agrees to continue to provide services to the Company from the date of
this Agreement until the close of business on the fifth (5th) anniversary of the
Effective Date (the "Expiration Date"), unless the Executive's employment is
earlier terminated pursuant to a Termination of Employment. The Executive will
serve the Company subject to the general supervision, advice and direction of
the Board and the Chief Executive Officer and upon the terms and conditions set
forth in this Agreement.
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3. TITLE AND DUTIES
(a) The Executive's job title shall be Senior Vice-President
and Chief Operating Officer of the Company. During the Employment Term the
Executive shall have primary executive authority over the Company's operations
in radio in all markets and such other authority and duties as are usual and
customary for such position, and shall perform such additional services and
duties as the Board may from time to time designate consistent with such
position. Throughout the Employment Term, the Company shall also nominate the
Executive to serve as a member of the Board and upon such nomination Executive
shall agree to so serve.
(b) The Executive shall report solely to the Chief Executive
Officer of the Company. All other senior radio operating executives of the
Company shall report directly to the Executive, and the Executive shall be
responsible for reviewing the performance of such senior radio operating
executives of the Company.
(c) The Executive shall devote his full business time and best
efforts to the business affairs of the Company; however, the Executive may
devote reasonable time and attention to:
(i) serving as a director of, or member of a
committee of the directors of, any not-for-profit organization or
engaging in other charitable or community activities; and
(ii) serving as a director of, or member of a
committee of the directors of, the corporations or organizations for
which the Executive presently serves in such capacity, and such other
corporations and organizations that the Board may from time to time
approve in the future.
4. COMPENSATION AND BENEFITS
(a) Base Compensation. During the Employment Term, the Company
shall pay the Executive, in installments according to the Company's regular
payroll practice, Base Salary at the annual rate of Nine Hundred Thousand
Dollars ($900,000) for the first (1st) Contract Year; and for each subsequent
Contract Year an amount equal to the product of
(i) the Base Salary for the immediately
preceding Contract Year; and
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(ii) the ratio of the Consumer Price Index for
the last complete calendar month in such preceding Contract Year to the
Consumer Price Index for the same month in the year preceding such
preceding Contract Year.
(b) Annual Incentive Bonus. The Executive shall be entitled to
an Annual Bonus for each calendar year during which he is employed hereunder.
Such Annual Bonus for any such calendar year shall be equal to five percent (5%)
of the excess, if any, of Broadcast Cash Flow for the portion of such calendar
year during which the Executive is employed over the Broadcast Cash Flow Target
for such portion of such calendar year, but in no event more than Three Million
Dollars ($3,000,000) in any calendar year or, for the calendar year, if any, in
which this contract terminates, the product of Three Million Dollars
($3,000,000) and the fraction of such calendar year which precedes the date of
such termination. The Executive's Annual Bonus earned with respect to each
calendar year shall be paid at the same time as annual incentive bonuses with
respect to that calendar year are paid to other senior executives of the Company
generally, but in no event later than March 31 of the following calendar year.
(c) Stock Options.
(i) On the Effective Date and each of the
first four (4) anniversaries thereof on which the Executive remains
employed hereunder, the Executive shall be granted an Option to
purchase One Hundred Sixty Thousand (160,000) shares of Common Stock.
In the event the Executive's employment hereunder is terminated by the
Company without Cause or by the Executive for Good Reason prior to the
Expiration Date, the Executive shall be granted, as of the date of such
Termination of Employment, a number of Options equal to Eight Hundred
Thousand (800,000) minus the number of Options previously granted
pursuant to the immediately preceding sentence.
(ii) All Options described in paragraph (i)
shall be granted subject to the following terms and conditions: (A) the
Options shall be granted under and subject to the Option Plan; (B) the
exercise price of the Options shall be the last reported sale price of
the Common Stock on the Nasdaq National Market System (or other
principal trading market for the Common Stock) at the close of the
trading day immediately preceding the date as of which the grant is
made; (C) each Option shall be vested on the date of grant; (D) each
Option shall be exercisable for the ten (10) year period following the
date of grant, subject, however, to such approval by the shareholders
of the Company as is sufficient to satisfy the requirements for listing
of the Common Stock on the Nasdaq National Market System; (E) each
Option shall be evidenced by, and subject to, an Option Agreement; and
(F) the number of shares granted shall be subject to adjustment for any
subsequent stock splits.
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(iii) The Option Agreements shall specify that
the Options shall remain exercisable for the periods described in
paragraph (ii) above notwithstanding any Termination of Employment.
(d) Vacation. During each complete twelve (12) month period of
the Employment Term, the Executive shall be entitled to no fewer than four (4)
weeks of paid vacation (unless, based on his length of service with the Company
and his position with the Company, the Executive is entitled to a greater number
of weeks of paid vacation under the Company's generally applicable vacation
policy, as determined by the Compensation Committee).
(e) Employee Benefit Plans. During the Employment Term, the
Executive shall be entitled to participate in all pension, profit sharing and
other retirement plans, all incentive compensation plans and all group health,
hospitalization and disability insurance plans and other employee welfare
benefit plans in which other senior executives of the Company may participate on
terms and conditions no less favorable than those which apply to such other
senior executives of the Company.
(f) Company Payment of Health Benefit Coverage. During the
Employment Term, the Company shall pay the amount of premiums or other cost
incurred for coverage of the Executive and his eligible spouse and dependent
family members under the applicable Company health benefits arrangement
(consistent with the terms of such arrangement).
(g) Life Insurance Policy. In addition to the insurance
coverage contemplated by Section 4(e), during the Employment Term the Company
shall maintain in effect term life insurance coverage for the Executive with a
death benefit of at least Five Hundred Thousand Dollars ($500,000), subject to
the Executive's insurability at standard rates and with the beneficiary or
beneficiaries thereof designated by the Executive. Notwithstanding Section 9 of
this Agreement, such life insurance policy or policies may be assigned to a
trust for the benefit of any beneficiary designated by the Executive.
(h) Automobile and Parking Allowance; Other Benefits.
(i) During the Employment Term, the Company
shall either provide the Executive with, or pay or reimburse the
Executive for (A) his purchase or lease of an automobile of the size
and class of the Executive's current Company-provided automobile; and
(B) parking space at the Company's corporate office maintained in
Chicago, Illinois
(ii) During the Employment Term, the Company
shall provide the Executive with, or pay or reimburse the Executive
for, the cost incurred for
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membership of the Executive and his spouse and dependent family members
in the athletic club of Executive's choosing and in the country club of
Executive's choosing.
(i) Most Favored Benefits. If the Company shall provide
employment related benefits (including, without limitation, benefits of the type
referred to by clauses (a) through (h) of this Section 4) in an aggregate amount
greater than or on more favorable terms and conditions (on an aggregate basis)
as are granted to any other senior executive of the Company (except for
Employment Inducements and benefits provided to the Chief Executive Officer of
the Company), the Executive shall be provided such benefits in substantially
comparable amount and/or under the substantially comparable terms and
conditions, as applicable, on an aggregate basis.
(j) Execution Bonuses. The Executive shall be paid or granted,
as the case may be, the following Employment Inducements in connection with the
execution of this Agreement, and in lieu of any and all rights under the Prior
Employment Agreement:
(i) Within fifteen (15) days after the
execution and delivery of this Agreement, the Company shall pay to the
Executive a one-time execution bonus in the gross amount of One Million
Dollars ($1,000,000).
(ii) Within thirty (30) days after the
execution and delivery of this Agreement, the Company shall make a
one-time cash payment to the Executive in a gross amount such that the
net payments retained by the Executive after payment of any Excise Tax
with respect to such payment shall equal Five Million Dollars
($5,000,000).
(iii) The Executive shall be granted an option
to purchase Eight Hundred Thousand (800,000) shares of Common Stock
(collectively, the "Execution Options"), subject to the following terms
and conditions: (A) the Execution Options shall be granted under and
subject to the Option Plan; (B) the exercise price of the Execution
Options shall be $42.125 per share (the price per share at the close of
trading on April 28, 1998); (C) the Executive Options shall be vested
on the date of grant; (D) each Executive Option shall be exercisable
for the ten (10) year period following the date of grant; and (E) each
Executive Option shall be evidenced by, and subject to, an Option
Agreement.
5. REIMBURSEMENT OF EXPENSES
In addition to the compensation provided for under Section 4
hereof, upon submission of proper vouchers, the Company will pay or reimburse
the Executive for all
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normal and reasonable travel and entertainment expenses incurred by the
Executive during the Employment Term in connection with the Executive's
responsibilities to the Company.
6. TERMINATION BENEFITS
(a) Upon the termination of the Executive's employment with
the Company for any reason, the Company shall provide the Executive (or, in the
case of his death, his estate or other legal representative), (i) any Annual
Bonus earned but not yet paid with respect to the preceding calendar year, (ii)
all benefits due him under the Company's benefits plans and policies for his
services rendered to the Company prior to the date of such termination
(according to the terms of such plans and policies), (iii) not later than ninety
(90) days after such termination, in a lump sum, all Base Salary earned through
the date of such termination, and (iv) not later than ninety (90) days after
such termination, in a lump sum, any Annual Bonus earned with respect to that
portion of the calendar year prior to such termination..
(b) In the event that the Executive's employment hereunder is
terminated by the Company without Cause or by the Executive for Good Reason (but
not by reason of expiration or non-renewal of this Agreement), and subject to
the last sentence of this subsection (b), the Company shall make a one-time cash
payment to the Executive in a gross amount such that the net payments retained
by the Executive after payment of any applicable Excise Tax with respect to such
payment shall equal Five Million Dollars ($5,000,000). Such payment shall be
made at the time of any such termination without Cause or within thirty (30)
days of any such resignation for Good Reason. Such payment shall be in full
satisfaction of all obligations of the Company to Executive hereunder (other
than those obligations set forth in subsection (a)) and shall be conditioned on
Executive giving a general release of the Company and affiliates in the form
used generally by the Company in the case of the termination of employment of
senior executives.
(c) (i) In the event that the Executive elects to terminate
his employment hereunder other than for Good Reason, the Company, in
consideration for the Executive's agreement in Section 7(b), shall
continue to pay him his Base Salary as set forth in Section 4(a)
through the fifth (5th) anniversary of the Effective Date.
(ii) In addition, in such event, the Company may, by
written notice to the Executive given no later than fifteen (15) days
following his termination of employment, elect to require the Executive
to observe the provisions of Section 7(c) hereof. In such event, the
Company shall, on the last day of each calendar year through December
31, 2002 make a payment to him
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equal to his Average Bonus, and on the last day of the calendar year
ending December 31, 2003 make a payment to him equal to the product of
his Average Bonus and the fraction of such calendar year which precedes
the Expiration Date.
(d) In the event that the Executive's employment is terminated
by reason of expiration or non-renewal of this Agreement the Company shall make
a (1) one time cash payment to the Executive equal to two (2) times the amount
of his annual Base Salary payable for the Contract Year ending on (or in which
falls) the date of Termination of Employment. Such payment shall be made at the
time of such Termination of Employment. Such payment shall be in full
satisfaction of all obligations of the Company to the Executive hereunder (other
than those obligations set forth in subsection (a)) and shall be conditioned on
the Executive giving a general release of the Company and affiliates in the form
used generally by the Company in the case of the termination of employment of
senior executives.
(e) In the event of any Termination of Employment, the
Executive shall not be required to seek other employment to mitigate damages,
and any income earned by the Executive from other employment or self-employment
shall not be offset against any obligations of the Company to the Executive
under this Agreement.
7. PROTECTED INFORMATION; PROHIBITED SOLICITATION
(a) The Executive hereby recognizes and acknowledges that
during the course of his employment by the Company, the Company will furnish,
disclose or make available to the Executive confidential or proprietary
information related to the Company's business, including, without limitation,
customer lists, ideas and formatting and programming concepts and plans, that
such confidential or proprietary information has been developed and will be
developed through the Company's expenditure of substantial time and money, and
that all such confidential information could be used by the Executive and others
to compete with the Company. The Executive hereby agrees that all such
confidential or proprietary information shall constitute trade secrets, and
further agrees to use such confidential or proprietary information only for the
purpose of carrying out his duties with the Company and not to disclose such
information unless required to do so by subpoena or other legal process. No
information otherwise in the public domain (other than by an act of the
Executive in violation hereof) shall be considered confidential.
The Executive further agrees that all memoranda, notices,
files, records and other documents concerning the business of the Company, made
or compiled by the Executive during the period of his employment or made
available to him, shall be the Company's property and shall be delivered to the
Company upon its request therefor and in any event upon the termination of the
Executive's employment with the Company, provided, however, that the
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Executive shall be permitted to retain copies of personal correspondence
generated or received by him during the Employment Term, subject to the use
restrictions of this Section 7(a).
(b) The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be held by the
Executive hereunder, that after any Termination of Employment, and through the
Expiration Date the Executive will not directly or indirectly induce any
employee of any of the Protected Companies (as defined below) to terminate such
employment or to become employed by any other radio broadcasting station.
(c) Should the Company make the election set forth in Section
6(c)(ii), the Executive further agrees that, from and after the Termination of
Employment and through the Expiration Date, he shall not be employed by or
perform activities on behalf of, or have an ownership interest in, (i) any radio
or television broadcasting station serving the same "Area of Dominant Influence"
(as reported by Arbitron) as any of the radio or television broadcasting
stations owned by the Company or its subsidiaries or affiliates, or the
subsidiaries or affiliates of any of the Company's direct or indirect
stockholders owning more than twenty percent (20%) of the Company (collectively
the "Protected Companies"), or (ii) any person, firm, corporation or other
entity, or in connection with any business enterprise, that is directly or
indirectly engaged in any of the radio, television, outdoor advertising or
related business activities in which the Company and its subsidiaries or the
Protected Companies have significant involvement (collectively, the "Competing
Business Areas"), in each case at the effective time of such Termination of
Employment (other than beneficial ownership of up to five percent (5%) of the
outstanding voting stock of a publicly traded company that owns such a
competitor).
(d) The restrictions in this Section 7, to the extent
applicable, shall survive the termination of this Agreement and shall be in
addition to any restrictions imposed upon the Executive by statute or at common
law.
(e) The parties hereby acknowledge that the restrictions in
this Section 7 have been specifically negotiated and agreed to by the parties
hereto and are limited only to those restrictions necessary to protect the
Protected Companies from unfair competition. The parties hereby agree that if
the scope or enforceability of any provision, paragraph or subparagraph of this
Section 7 is in any way disputed at any time, and should a court find that such
restrictions are overly broad, the court may modify and enforce the covenant to
the extent that it believes to be reasonable under the circumstances. Each
provision, paragraph and subparagraph of this Section 7 is separable from every
other provision, paragraph, and subparagraph and constitutes a separate and
distinct covenant. The Executive acknowledges that the Protected Companies
operate in major and medium sized markets throughout the
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United States and that the effect of Section 7(c) may be to prevent him from
working in the Competing Business Areas after his termination of employment
hereunder.
8. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in Section 7 of
this Agreement may result in significant and continuing injury to the Company,
the monetary value of which would be impossible to establish. Therefore, the
Executive agrees that the Company shall be entitled to apply for injunctive
relief in a court of appropriate jurisdiction. The provisions of this Section 8
shall survive the Employment Term.
9. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs
and his personal representative or representatives, and upon the Company and Los
Angeles and their respective successors and assigns. Neither this Agreement nor
any rights or obligations hereunder may be assigned by the Executive, other than
by will or by the laws of descent and distribution.
10. NOTICES
Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at its then principal office, or to the
Executive at the address set forth in the preamble, as the case may be, or to
such other address or addresses as any party hereto may from time to time
specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 10. Notices shall be deemed given when received.
11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest
extent permitted by the laws of the State of Delaware, as in effect at the time
of the subject act or omission, and shall advance to the Executive reasonable
attorneys' fees and expenses as such fees and expenses are incurred (subject to
an undertaking from the Executive to repay such advances if it shall be finally
determined by a judicial decision which is not subject to further appeal that
the Executive was not entitled to the reimbursement of such fees and expenses)
and he will be entitled to the protection of any insurance policies the Company
may elect to maintain generally for the benefit of its directors and officers
("Directors and Officers Insurance") against all costs, charges and expenses
incurred or sustained by him in connection with any action, suit or proceeding
to which he may be made a party by reason of his being or having been a
director, officer or employee of the Company or any of its subsidiaries or his
serving or having served any other enterprise as a director, officer or employee
at the request of the Company (other than any dispute, claim or controversy
arising under or relating to this Agreement). The Company covenants to maintain
during the Employment Term for the benefit of the Executive (in his capacity as
an officer and director of the Company) Directors and Officers Insurance
providing benefits to the Executive no less favorable, taken as a whole, than
the benefits provided to the Executive by the Directors and Officers Insurance
maintained by the Company on the date hereof; provided, however, that the Board
may elect to terminate Directors and Officers Insurance for all officers and
directors, including the Executive, if the Board determines in good faith that
such insurance is not available or is available only at unreasonable expense.
13. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE
The Executive represents and warrants to the Company that (a)
the Executive is under no contractual or other restriction which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder or
the other rights of Company hereunder, and (b) the Executive is under no
physical or mental disability that would hinder the performance of his duties
under this Agreement.
14. DISPUTES
Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and upon
written demand of either the Executive or the Company, be finally determined and
settled by arbitration in the city of the Company's headquarters in accordance
with the rules and procedures of the American Arbitration Association, and
judgment upon the award may be entered in any court having
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jurisdiction thereof. The Company shall pay the costs and expenses of such
arbitration and the fees of the Executive's counsel and experts unless the
finder of fact determines that the Company is the prevailing party in such
arbitration.
15. FACILITY OF PAYMENT
All cash payments to be made by the Company to or on behalf of
the Executive hereunder shall be an obligation of and made by Los Angeles.
16. PRIOR EMPLOYMENT AGREEMENT
This Agreement shall supersede and replace in its entirety the
Prior Employment Agreement and, except as specifically described herein, all of
the Executive's and the Company's rights and obligations under the Prior
Employment Agreement are extinguished upon the effectiveness of this Agreement,
and the Executive acknowledges and agrees that he shall have no rights under the
Prior Employment Agreement, including, without limitation, any rights under
Section 6 of the Prior Employment Agreement. The Executive hereby withdraws any
and all termination notices previously delivered in connection with the Prior
Employment Agreement.
17. MISCELLANEOUS
The provisions of this Agreement shall survive the termination
of the Executive's employment with the Company. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof. This
Agreement supersedes any prior written or oral agreements or understandings
between the parties relating to the subject matter hereof. No modification or
amendment of this Agreement shall be valid unless in writing and signed by or on
behalf of the parties hereto. A waiver of the breach of any term or condition of
this Agreement shall not be deemed to constitute a waiver of any subsequent
breach of the same or any other term or condition. This Agreement is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance, shall, for
any reason and to any extent, be held invalid or unenforceable, such invalidity
and unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of which
shall be enforced to the greatest extent permitted by law. The compensation
provided to the Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable tax laws. Any amounts
payable under this Agreement to the Executive after the death of the
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Executive shall be paid to the Executive's estate or legal representative. The
headings in this Agreement are inserted for convenience of reference only and
shall not be a part of or control or affect the meaning of any provision hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ THOMAS O. HICKS
------------------------------------
Thomas O. Hicks
Chairman of the Board
Interim President and Chief Executive Officer
/s/ JAMES E. DE CASTRO
---------------------------------------
James E. de Castro
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EXHIBIT 10.49
EMPLOYMENT AGREEMENT
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
MATTHEW E. DEVINE
This Employment Agreement (this "Agreement") is made and entered into on
May 18, 1998, to be effective as of April 17, 1998 (the "Effective Date"),
between Chancellor Media Corporation, a Delaware corporation (the "Company"),
Chancellor Media Corporation of Los Angeles, a Delaware corporation ("Los
Angeles") and Matthew E. Devine (the "Executive"), residing at 3101 Cumberland
Court, Colleyville, TX 76034.
W I T N E S S E T H:
WHEREAS, the Company, Los Angeles and the Executive are parties to an
existing Employment Agreement dated effective as of September 4, 1997 (the
"Prior Employment Agreement"); and
WHEREAS, in connection with certain management changes at the Company, the
Company and the Executive desire to amend and restate in its entirety the Prior
Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
The following terms used in this Agreement shall have the meaning specified
below unless the context clearly indicates the contrary:
"Annual Bonus" shall mean the annual incentive bonus payable to the
Executive described in Section 4.
"Average Bonus" shall mean the greater of (a) (i) the total of the Annual
Bonuses paid hereunder with respect to the Employment Term, divided by (ii) the
length of such portion of the Employment Term in years (including fractions) as
falls on or prior to the last December 31 thereof and (b) One Million Two
Hundred Thousand Dollars ($1,200,000).
"Base Salary" shall mean the annual base salary payable to the Executive at
the rate set forth in Section 4.
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"Board" shall mean the Board of Directors of the Company.
"Broadcast Cash Flow" for any accounting period shall mean station
operating income for such accounting period for the stations owned or operated
by the Company as of the last day of such accounting period on a consolidated
basis excluding depreciation, amortization and corporate, general and
administrative expenses, calculated in a manner consistent with the presentation
of "broadcast cash flow" in the Company's periodic reports filed with the
Securities Exchange Commission.
"Broadcast Cash Flow Target" for any accounting period shall mean one
hundred five percent (105%) of the station operating income for the
corresponding accounting period falling twelve (12) months earlier on a
consolidated basis excluding depreciation, amortization and corporate, general
and administrative expenses, calculated in a manner consistent with the
presentation of "broadcast cash flow" in the Company's periodic reports filed
with the Securities Exchange Commission, with respect to the stations owned or
operated by the Company as of the last day of the accounting period for which
the Broadcast Cash Flow Target is calculated.
"Cause" shall mean the Executive's (a) habitual neglect of his material
duties or failure to perform his material obligations under this Agreement, (b)
refusal or failure to follow lawful directives of the Board, (c) commission of
an act of fraud, theft or embezzlement, or (d) conviction of a felony or other
crime involving moral turpitude; provided, however, that the Company shall give
the Executive written notice of any actions alleged to constitute Cause under
subsections (a) and (b) above, and the Executive shall have a reasonable
opportunity (as specified by the Compensation Committee) to cure any such
alleged Cause.
"Change in Control" shall mean (a) the sale, lease or other transfer of all
or substantially all of the assets of the Company to any person or group (as
such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended); (b) the adoption by the stockholders of the Company of a plan relating
to the liquidation or dissolution of the Company; (c) the merger or
consolidation of the Company with or into another entity or the merger of
another entity into the Company or any subsidiary thereof with the effect that
immediately after such transaction the stockholders of the Company immediately
prior to such transaction (or their Related Parties) hold less than fifty
percent (50%) of the total voting power of all securities generally entitled to
vote in the election of directors, managers or trustees of the entity surviving
such merger or consolidation; (d) the acquisition by any person or group of more
than fifty percent (50%) of the voting power of all securities of the Company
generally entitled to vote in the election of directors of the Company; or (e)
the majority of the Board is composed of members who (i) have served less than
twelve (12) months and (ii) were not approved by a majority of the Board at the
time of their election or appointment.
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"Change in Operations" shall mean a change in the business operating
strategies of the Company (e.g. material cost controls or other material
restrictions on the Company's ability to increase its gross revenues) which are
imposed upon the Executive without his consent, and, in his reasonable
judgement, are fundamentally different from the business operating strategies in
effect at the Company on the Effective Date; provided, however, any expansion of
the Company's business into other media businesses, including, without
limitation, radio stations in small- or medium-sized markets, television,
outdoor advertising, and international media opportunities, shall not constitute
a Change in Operations. Any dispute as to whether a Change of Operations has
occurred shall be resolved pursuant to Section 14.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean $0.01 par value common stock of the Company.
"Compensation Committee" shall mean the Compensation Committee of the
Board.
"Consumer Price Index" shall mean the Consumer Price Index for All Urban
Consumers (1982-84=100) for all cities as reported by the United States Bureau
of Labor Statistics.
"Contract Year" shall mean each twelve (12) consecutive month period during
the Employment Term which begins on the Effective Date and each annual
anniversary thereof.
"Employment Inducements" shall mean any compensation, including, without
limitation, signing bonuses and stock options, that are paid or granted to
senior officers of the Company in connection with such officers' initial hiring
by the Company, or in connection with any amendments to or extensions of the
term of such senior officers' employment agreements with the Company.
"Employment Term" shall mean the period beginning on the Effective Date and
ending on the close of business on the effective date of the Executive's
termination of employment with the Company.
"Excise Tax" shall mean the taxes imposed by Code Section 4999.
"Expiration Date" shall have the meaning ascribed to such term in Section
2.
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"Good Reason" shall mean (a) the Company's material breach of any provision
hereof, (b) the Executive no longer directly reporting to Jeffrey A. Marcus or
Thomas O. Hicks, (c) any adverse change in the Executive's job responsibilities
(except for responsibilities relating to acquisitions), duties, functions,
status, offices, title, perquisites or support staff, (d) relocation of the
Executive's regular work address by more than twenty (20) miles without his
consent, (e) a Change in Operations, or (f) a Change in Control; provided,
however, that the Executive shall give the Company written notice of any actions
(other than those set out in subsections (e) or (f) above) alleged to constitute
Good Reason and the Company shall have a reasonable opportunity to cure any such
alleged Good Reason.
"Option Agreement" shall mean the agreement between the Executive and the
Company pursuant to which any Option is granted to the Executive.
"Option Plan" shall mean the 1998 Chancellor Media Corporation
Non-Qualified Stock Option Plan, as amended from time to time, and any successor
thereto, subject to obtaining stockholder's approval of the Option Plan (which
will be submitted to the Company's stockholders at the 1998 annual meeting of
stockholders with the recommendation of the Board).
"Options" shall mean the non-qualified stock options to be granted to the
Executive hereunder.
"Permanent Disability" shall mean the Executive's inability to perform the
duties contemplated by this Agreement by reason of a physical or mental
disability or infirmity which has continued for more than ninety (90) working
days (excluding vacation) in any twelve (12) consecutive month period as
determined by the Board. The Executive agrees to submit such medical evidence
regarding such disability or infirmity as is reasonably requested by the Board.
"Prior Employment Agreement" shall be as defined in the Recitals to this
Agreement.
"Related Parties" shall mean with respect to any person (a) the spouse and
lineal ascendants and descendants of such person, and any sibling of any of such
persons and (b) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or persons beneficially holding an
eighty percent (80%) or more controlling interest of which consist of persons
referred to in subsection (a) above.
"Termination of Employment" shall mean the first to occur of the following
events:
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(a) the date of death of the Executive;
(b) the effective date specified in the Company's written notice
to the Executive of the termination of his employment as a result of
his Permanent Disability, which effective date shall not be earlier
than the ninety-first (91st) working day (excluding vacation) following
the commencement of the Executive's inability to perform his duties
hereunder;
(c) the effective date specified in the Company's written notice
to the Executive of the Company's termination of his employment without
Cause;
(d) the effective date specified in the Company's written notice
to the Executive of the Company's termination of his employment for
Cause;
(e) the effective date specified in the Executive's written
notice to the Company of the Executive's termination of his employment
for Good Reason;
(f) the effective date specified in the Executive's written
notice to the Company of the Executive's termination of his employment
without Good Reason; and
(g) the date the Executive's employment terminates pursuant to
Section 2.
"Termination without Cause" shall mean a termination by the Company of the
Executive's employment without Cause.
2. EMPLOYMENT
The Company agrees to continue the employment of the Executive, and the
Executive agrees to continue to provide services to the Company from the date of
this Agreement until the close of business on the fifth (5th) anniversary of the
Effective Date (the "Expiration Date"), unless the Executive's employment is
earlier terminated pursuant to a Termination of Employment. The Executive will
serve the Company subject to the general supervision, advice and direction of
the Board and the Chief Executive Officer and upon the terms and conditions set
forth in this Agreement.
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3. TITLE AND DUTIES
(a) The Executive's job title shall be Senior Vice-President and Chief
Financial Officer of the Company (and any new multi-media company formed with
the Company). During the Employment Term the Executive shall have such authority
and duties as are usual and customary for such position, and shall perform such
additional services and duties as the Board may from time to time designate
consistent with such position.
(b) The Executive shall report solely to the Chief Executive Officer.
Certain other senior officers of the Company, designated from time to time by
the Chief Executive Officer, may report, directly or indirectly through other
senior officers designated from time to time by the Chief Executive Officer, to
the Executive, and the Executive shall be responsible for reviewing the
performance of such senior officers of the Company.
(c) The Executive shall devote his full business time and best efforts to
the business affairs of the Company; however, the Executive may devote
reasonable time and attention to:
(i) serving as a director of, or member of a committee of the
directors of, any not-for-profit organization or engaging in other
charitable or community activities; and
(ii) serving as a director of, or member of a committee of the
directors of, the corporations or organizations for which the Executive
presently serves in such capacity, and such other corporations and
organizations that the Board may from time to time approve in the
future; provided, that except as specified above, the Executive may not
accept employment with any other individual or other entity, or engage
in any other venture which is indirectly or directly in conflict or
competition with the then existing business of the Company.
4. COMPENSATION AND BENEFITS
(a) Base Compensation. During the Employment Term, the Company shall pay
the Executive, in installments according to the Company's regular payroll
practice, Base Salary at the annual rate of Five Hundred Thousand Dollars
($500,000) for the first (1st) Contract Year with increases of Twenty Five
Thousand Dollars ($25,000) per year for each subsequent Contract Year.
(b) Annual Incentive Bonus. The Executive shall be entitled to an Annual
Bonus for each calendar year during which he is employed hereunder. Such Annual
Bonus for
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any such calendar year shall be equal to two and one-half percent (2.5%) of the
excess, if any, of Broadcast Cash Flow for the portion of such calendar year
during which the Executive is employed over the Broadcast Cash Flow Target for
such portion of such calendar year, but in no event more than Two Million
Dollars ($2,000,000) in any calendar year or, for the calendar year, if any, in
which this contract terminates, the product of Two Million Dollars ($2,000,000)
and the fraction of such calendar year which precedes the date of such
termination. The Executive's Annual Bonus earned with respect to each calendar
year shall be paid at the same time as annual incentive bonuses with respect to
that calendar year are paid to other senior executives of the Company generally,
but in no event later than March 31 of the following calendar year.
(c) Stock Options.
(i) On the Effective Date and each of the first four (4)
anniversaries thereof on which the Executive remains employed
hereunder, the Executive shall be granted an Option to purchase One
Hundred Twenty Thousand (120,000) shares of Common Stock. In the event
the Executive's employment hereunder is terminated by the Company
without Cause or by the Executive for Good Reason prior to the
Expiration Date, the Executive shall be granted, as of the date of such
Termination of Employment, a number of Options equal to Six Hundred
Thousand (600,000) minus the number of Options previously granted
pursuant to the immediately preceding sentence.
(ii) All Options described in paragraph (i) shall be granted
subject to the following terms and conditions: (A) the Options shall be
granted under and subject to the Option Plan; (B) the exercise price of
the Options shall be the last reported sale price of the Common Stock
on the Nasdaq National Market System (or other principal trading market
for the Common Stock) at the close of the trading day immediately
preceding the date as of which the grant is made; (C) each Option shall
be vested on the date of grant; (D) each Option shall be exercisable
for the ten (10) year period following the date of grant, subject,
however, to such approval by the shareholders of the Company as is
sufficient to satisfy the requirements for listing of the Common Stock
on the Nasdaq National Market System; (E) each Option shall be
evidenced by, and subject to, an Option Agreement; and (F) the number
of shares granted shall be subject to adjustment for any subsequent
stock splits.
(iii) The Option Agreements shall specify that the Options shall
remain exercisable for the periods described in paragraph (ii) above
notwithstanding any Termination of Employment.
(d) Vacation. During each complete twelve (12) month period of the
Employment Term, the Executive shall be entitled to no fewer than four (4) weeks
of paid
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vacation (unless, based on his length of service with the Company and his
position with the Company, the Executive is entitled to a greater number of
weeks of paid vacation under the Company's generally applicable vacation policy,
as determined by the Compensation Committee).
(e) Employee Benefit Plans. During the Employment Term, the Executive shall
be entitled to participate in all pension, profit sharing and other retirement
plans, all incentive compensation plans and all group health, hospitalization
and disability insurance plans and other employee welfare benefit plans in which
other senior executives of the Company may participate on terms and conditions
no less favorable than those which apply to such other senior executives of the
Company.
(f) Company Payment of Health Benefit Coverage. During the Employment Term,
the Company shall pay the amount of premiums or other cost incurred for coverage
of the Executive and his eligible spouse and dependent family members under the
applicable Company health benefits arrangement (consistent with the terms of
such arrangement).
(g) Life Insurance Policy. In addition to the insurance coverage
contemplated by Section 4(e), during the Employment Term the Company shall
maintain in effect term life insurance coverage for the Executive with a death
benefit of at least Five Hundred Thousand Dollars ($500,000), subject to the
Executive's insurability at standard rates and with the beneficiary or
beneficiaries, thereof designated by the Executive. Notwithstanding Section 9 of
this Agreement, such life insurance policy or policies may be assigned to a
trust for the benefit of any beneficiary designated by the Executive.
(h) Automobile and Parking Allowance; Other Benefits.
(i) During the Employment Term, the Company shall either provide
the Executive with, or pay or reimburse the Executive for (A) his
purchase or lease of an automobile of the size and class of the
Executive's current Company-provided automobile; and (B) parking space
at the Company's corporate office maintained in Irving, Texas.
(ii) During the Employment Term, the Company shall provide the
Executive with, or pay or reimburse the Executive for, the cost
incurred for membership of the Executive and his spouse and dependent
family members in the athletic club of Executive's choosing and in the
country club of Executive's choosing.
(i) Most Favored Benefits. If the Company shall provide employment related
benefits (including, without limitation, benefits of the type referred to by
clauses (a)
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through (h) of this Section 4) in an aggregate amount greater than or on more
favorable terms and conditions (on an aggregate basis) as are granted to any
other senior executive of the Company (except for Employment Inducements and
benefits provided to the Chief Executive Officer or Chief Operating Officer of
the Company), the Executive shall be provided such benefits in substantially
comparable amount and/or under the substantially comparable terms and
conditions, as applicable, on an aggregate basis.
(j) Execution Bonus. The Executive shall be paid or granted, as the case
may be, the following Employment Inducements in connection with the execution of
this Agreement, and in lieu of any and all rights under the Prior Employment
Agreement:
(i) Within fifteen (15) days after the execution and delivery of
this Agreement, the Company shall pay to the Executive a one-time
execution bonus in the gross amount of One Million Dollars
($1,000,000).
(ii) Within thirty (30) days after the execution and delivery of
this Agreement, the Company shall make a one-time cash payment to the
Executive in a gross amount such that the net payments retained by the
Executive after payment of any Excise Tax with respect to such payment
shall equal Two Million Dollars ($2,000,000).
(iii) The Executive shall be granted an option to purchase Six
Hundred Thousand (600,000) shares of Common Stock (collectively, the
"Execution Options"), subject to the following terms and conditions:
(A) the Execution Options shall be granted under and subject to the
Option Plan; (B) the exercise price of the Execution Options shall be
$42.125 per share (the price per share at the close of trading on April
28, 1998); (C) the Executive Options shall be vested on the date of
grant; (D) each Executive Option shall be exercisable for the ten (10)
year period following the date of grant; and (E) each Executive Option
shall be evidenced by, and subject to, an Option Agreement.
5. REIMBURSEMENT OF EXPENSES
In addition to the compensation provided for under Section 4 hereof, upon
submission of proper vouchers, the Company will pay or reimburse the Executive
for all normal and reasonable travel and entertainment expenses incurred by the
Executive during the Employment Term in connection with the Executive's
responsibilities to the Company.
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6. TERMINATION BENEFITS
(a) Upon the termination of the Executive's employment with the Company for
any reason, the Company shall provide the Executive (or, in the case of his
death, his estate or other legal representative), (i) any Annual Bonus earned
but not yet paid with respect to the preceding calendar year, (ii) all benefits
due him under the Company's benefits plans and policies for his services
rendered to the Company prior to the date of such termination (according to the
terms of such plans and policies), (iii) not later than ninety (90) days after
such termination, in a lump sum, all Base Salary earned through the date of such
termination, and (iv) not later than ninety (90) days after such termination, in
a lump sum, any Annual Bonus earned with respect to that portion of the calendar
year prior to such termination.
(b) In the event that the Executive's employment hereunder is terminated by
the Company without Cause or by the Executive for Good Reason (but not by reason
of expiration or non-renewal of this Agreement), and subject to the last
sentence of this subsection (b), the Company shall make a one-time cash payment
to the Executive in a gross amount such that the net payments retained by the
Executive after payment of any applicable Excise Tax with respect to such
payment shall equal Two Million Dollars ($2,000,000). Such payment shall be made
at the time of any such termination without Cause or within thirty (30) days of
any such resignation for Good Reason. Such payment shall be in full satisfaction
of all obligations of the Company to Executive hereunder (other than those
obligations set forth in subsection (a)) and shall be conditioned on Executive
giving a general release of the Company and affiliates in the form used
generally by the Company in the case of the termination of employment of senior
executives.
(c) (i) In the event that the Executive elects to terminate his
employment hereunder other than for Good Reason, the Company, in
consideration for the Executive's agreement in Section 7(b), shall
continue to pay him his Base Salary as set forth in Section 4(a)
through the earlier of (A) the fifth (5th) anniversary of the Effective
Date or (B) the second (2nd) anniversary of such termination of
employment (the earlier of such dates, the "Cessation Date").
(ii) In addition, in such event, the Company may, by written
notice to the Executive given no later than 15 days following his
termination of employment, elect to require the Executive to observe
the provisions of Section 7(c) hereof. In such event, the Company
shall, on the last day of each calendar year through December 31, 2002
make a payment to him equal to his Average Bonus, and on the last day
of the calendar year which includes the Cessation Date make a payment
to him equal to the product of his Average Bonus and the fraction of
such calendar year which precedes the Cessation Date.
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(d) In the event that the Executive's employment is terminated by reason of
expiration or non-renewal of this Agreement the Company shall make a one-time
cash payment to the Executive equal to two (2) times the amount of his annual
Base Salary payable for the Contract Year ending on (or in which falls) the date
of Termination of Employment. Such payment shall be made at the time of such
Termination of Employment. Such payment shall be in full satisfaction of all
obligations of the Company to the Executive hereunder (other than those
obligations set forth in subsection (a)) and shall be conditioned on the
Executive giving a general release of the Company and affiliates in the form
used generally by the Company in the case of the termination of employment of
senior executives.
(e) In the event of any Termination of Employment, the Executive shall not
be required to seek other employment to mitigate damages, and any income earned
by the Executive from other employment or self-employment shall not be offset
against any obligations of the Company to the Executive under this Agreement.
7. PROTECTED INFORMATION; PROHIBITED SOLICITATION
(a) The Executive hereby recognizes and acknowledges that during the course
of his employment by the Company, the Company will furnish, disclose or make
available to the Executive confidential or proprietary information related to
the Company's business, including, without limitation, customer lists, ideas and
formatting and programming concepts and plans, that such confidential or
proprietary information has been developed and will be developed through the
Company's expenditure of substantial time and money, and that all such
confidential information could be used by the Executive and others to compete
with the Company. The Executive hereby agrees that all such confidential or
proprietary information shall constitute trade secrets, and further agrees to
use such confidential or proprietary information only for the purpose of
carrying out his duties with the Company and not to disclose such information
unless required to do so by subpoena or other legal process. No information
otherwise in the public domain (other than by an act of the Executive in
violation hereof) shall be considered confidential.
The Executive further agrees that all memoranda, notices, files, records
and other documents concerning the business of the Company, made or compiled by
the Executive during the period of his employment or made available to him,
shall be the Company's property and shall be delivered to the Company upon its
request therefor and in any event upon the termination of the Executive's
employment with the Company, provided, however, that the Executive shall be
permitted to retain copies of personal correspondence generated or received by
him during the Employment Term, subject to the use restrictions of this Section
7(a).
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(b) The Executive hereby agrees, in consideration of his employment
hereunder and in view of the confidential position to be held by the Executive
hereunder, that after any Termination of Employment, and through the Expiration
Date the Executive will not directly or indirectly induce any employee of any of
the Protected Companies (as defined below) to terminate such employment or to
become employed by any other media company.
(c) Should the Company make the election set forth in Section 6(c)(ii), the
Executive further agrees that, from and after the Termination of Employment and
through the Expiration Date, he shall not be employed by or perform activities
on behalf of, or have an ownership interest in, (i) any radio or television
broadcasting station serving the same "Area of Dominant Influence" (as reported
by Arbitron) as any of the radio or television broadcasting stations owned by
the Company or its subsidiaries or affiliates, or the subsidiaries or affiliates
of any of the Company's direct or indirect stockholders owning more than twenty
percent (20%) of the Company (collectively the "Protected Companies"), or (ii)
any person, firm, corporation or other entity, or in connection with any
business enterprise, that is directly or indirectly engaged in any of the radio,
television, outdoor advertising or related business activities in which the
Company and its subsidiaries or the Protected Companies have significant
involvement (collectively, the "Competing Business Areas"), in each case at the
effective time of such Termination of Employment (other than beneficial
ownership of up to five percent (5%) of the outstanding voting stock of a
publicly traded company that owns such a competitor).
(d) The restrictions in this Section 7, to the extent applicable, shall
survive the termination of this Agreement and shall be in addition to any
restrictions imposed upon the Executive by statute or at common law.
(e) The parties hereby acknowledge that the restrictions in this Section 7
have been specifically negotiated and agreed to by the parties hereto and are
limited only to those restrictions necessary to protect the Protected Companies
from unfair competition. The parties hereby agree that if the scope or
enforceability of any provision, paragraph or subparagraph of this Section 7 is
in any way disputed at any time, and should a court find that such restrictions
are overly broad, the court may modify and enforce the covenant to the extent
that it believes to be reasonable under the circumstances. Each provision,
paragraph and subparagraph of this Section 7 is separable from every other
provision, paragraph, and subparagraph and constitutes a separate and distinct
covenant. The Executive acknowledges that the Protected Companies operate in
major and medium sized markets throughout the United States and that the effect
of Section 7(c) may be to prevent him from working in the Competing Business
Areas after his termination of employment hereunder.
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8. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or threatened
breach by the Executive of any of the terms set forth in Section 7 of this
Agreement may result in significant and continuing injury to the Company, the
monetary value of which would be impossible to establish. Therefore, the
Executive agrees that the Company shall be entitled to apply for injunctive
relief in a court of appropriate jurisdiction. The provisions of this Section 8
shall survive the Employment Term.
9. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs and his
personal representative or representatives, and upon the Company and Los Angeles
and their respective successors and assigns. Neither this Agreement nor any
rights or obligations hereunder may be assigned by the Executive, other than by
will or by the laws of descent and distribution.
10. NOTICES
Any notice required or permitted by this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, addressed to the
Board and the Company at its then principal office, or to the Executive at the
address set forth in the preamble, as the case may be, or to such other address
or addresses as any party hereto may from time to time specify in writing for
the purpose in a notice given to the other parties in compliance with this
Section 10. Notices shall be deemed given when received.
11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest extent permitted
by the laws of the State of Delaware, as in effect at the time of the subject
act or omission, and shall advance to the Executive reasonable attorneys' fees
and expenses as such fees and expenses are incurred (subject to an undertaking
from the Executive to repay such advances if
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it shall be finally determined by a judicial decision which is not subject to
further appeal that the Executive was not entitled to the reimbursement of such
fees and expenses) and he will be entitled to the protection of any insurance
policies the Company may elect to maintain generally for the benefit of its
directors and officers ("Directors and Officers Insurance") against all costs,
charges and expenses incurred or sustained by him in connection with any action,
suit or proceeding to which he may be made a party by reason of his being or
having been a director, officer or employee of the Company or any of its
subsidiaries or his serving or having served any other enterprise as a director,
officer or employee at the request of the Company (other than any dispute, claim
or controversy arising under or relating to this Agreement). The Company
covenants to maintain during the Employment Term for the benefit of the
Executive (in his capacity as an officer and director of the Company) Directors
and Officers Insurance providing benefits to the Executive no less favorable,
taken as a whole, than the benefits provided to the Executive by the Directors
and Officers Insurance maintained by the Company on the date hereof; provided,
however, that the Board may elect to terminate Directors and Officers Insurance
for all officers and directors, including the Executive, if the Board determines
in good faith that such insurance is not available or is available only at
unreasonable expense.
13. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE
The Executive represents and warrants to the Company that (a) the Executive
is under no contractual or other restriction which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder or the
other rights of Company hereunder, and (b) the Executive is under no physical or
mental disability that would hinder the performance of his duties under this
Agreement.
14. DISPUTES
Any dispute or controversy arising under, out of, in connection with or in
relation to this Agreement shall, at the election and upon written demand of
either the Executive or the Company, be finally determined and settled by
arbitration in the city of the Company's headquarters in accordance with the
rules and procedures of the American Arbitration Association, and judgment upon
the award may be entered in any court having jurisdiction thereof. The Company
shall pay the costs and expenses of such arbitration and the fees of the
Executive's counsel and experts unless the finder of fact determines that the
Company is the prevailing party in such arbitration.
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15. FACILITY OF PAYMENT
All cash payments to be made by the Company to or on behalf of the
Executive hereunder shall be an obligation of and made by Los Angeles.
16. PRIOR EMPLOYMENT AGREEMENT
This Agreement shall supersede and replace in its entirety the Prior
Employment Agreement and, except as specifically described herein, all of the
Executive's and the Company's rights and obligations under the Prior Employment
Agreement are extinguished upon the effectiveness of this Agreement, and the
Executive acknowledges and agrees that he shall have no rights under the Prior
Employment Agreement, including, without limitation, any rights under Section 6
of the Prior Employment Agreement. The Executive hereby withdraws any and all
termination notices previously delivered in connection with the Prior Employment
Agreement.
17. MISCELLANEOUS
The provisions of this Agreement shall survive the termination of the
Executive's employment with the Company. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
supersedes any prior written or oral agreements or understandings between the
parties relating to the subject matter hereof. No modification or amendment of
this Agreement shall be valid unless in writing and signed by or on behalf of
the parties hereto. A waiver of the breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance, shall, for
any reason and to any extent, be held invalid or unenforceable, such invalidity
and unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of which
shall be enforced to the greatest extent permitted by law. The compensation
provided to the Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable tax laws. Any amounts
payable under this Agreement to the Executive after the death of the Executive
shall be paid to the Executive's estate or legal representative. The headings in
this Agreement are inserted for convenience of reference only and shall not be a
part of or control or affect the meaning of any provision hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ THOMAS O. HICKS
---------------------------------------
Thomas O. Hicks
Chairman of the Board
Interim President and Chief Executive Officer
/s/ MATTHEW E. DEVINE
---------------------------------------
Matthew E. Devine
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EXHIBIT 10.50
EMPLOYMENT AGREEMENT
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
ERIC C. NEUMAN
This Employment Agreement (this "Agreement") is made and
entered into as of June 1, 1998 (the "Agreement Date"), to be effective as of
July 1, 1998 (the "Effective Date"), between Chancellor Media Corporation, a
Delaware corporation (the "Company"), Chancellor Media Corporation of Los
Angeles, a Delaware corporation ("Los Angeles") and Eric C. Neuman (the
"Executive"), residing at 3608 Greenbriar Drive, Dallas, Texas 75225.
W I T N E S S E T H:
WHEREAS, the Company has a need for executive management
services; and
WHEREAS, the Executive is qualified and willing to render such
services to the Company; and
WHEREAS, the parties hereto desire to enter into an employment
agreement for the services of the Executive, on the terms and conditions as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the parties agree as
follows:
1. DEFINITIONS
The following terms used in this Agreement shall have the
meaning specified below unless the context clearly indicates the contrary:
"Annual Bonus" shall mean the annual incentive bonus payable
to the Executive described in Section 4.
"Average Bonus" shall mean the greater of (a) (i) the total of
the Annual Bonuses paid hereunder with respect to the Employment Term, divided
by (ii) the length of such portion of the Employment Term in years (including
fractions) as falls on or prior to the last December 31 thereof and (b) One
Million Dollars ($1,000,000).
<PAGE> 2
"Base Salary" shall mean the annual base salary payable to the
Executive at the rate set forth in Section 4.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean the Executive's (a) habitual neglect of his
material duties or failure to perform his material obligations under this
Agreement, (b) refusal or failure to follow lawful directives of the Board, (c)
commission of an act of fraud, theft or embezzlement, or (d) conviction of a
felony or other crime involving moral turpitude; provided, however, that the
Company shall give the Executive written notice of any actions alleged to
constitute Cause under subsections (a) and (b) above, and the Executive shall
have a reasonable opportunity (as specified by the Compensation Committee) to
cure any such alleged Cause.
"Change in Control" shall mean (a) the sale, lease or other
transfer of all or substantially all of the assets of the Company to any person
or group (as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended); (b) the adoption by the stockholders of the Company of
a plan relating to the liquidation or dissolution of the Company; (c) the merger
or consolidation of the Company with or into another entity or the merger of
another entity into the Company or any subsidiary thereof with the effect that
immediately after such transaction the stockholders of the Company immediately
prior to such transaction (or their Related Parties) hold less than fifty
percent (50%) of the total voting power of all securities generally entitled to
vote in the election of directors, managers or trustees of the entity surviving
such merger or consolidation; (d) the acquisition by any person or group of more
than fifty percent (50%) of the voting power of all securities of the Company
generally entitled to vote in the election of directors of the Company; or (e)
the majority of the Board is composed of members who (i) have served less than
twelve (12) months and (ii) were not approved by a majority of the Board at the
time of their election or appointment.
"Change in Operations" shall mean a change in the business
operating strategies of the Company (e.g. material cost controls or other
material restrictions on the Company's ability to increase its gross revenues)
which are imposed upon the Executive without his consent, and, in his reasonable
judgement, are fundamentally different from the business operating strategies in
effect at the Company on the Effective Date; provided, however, any expansion of
the Company's business into other media businesses, including, without
limitation, radio stations in small- or medium-sized markets, television,
outdoor advertising, and international media opportunities, shall not constitute
a Change in Operations. Any dispute as to whether a Change of Operations has
occurred shall be resolved pursuant to Section 14.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
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"Common Stock" shall mean $0.01 par value common stock of the
Company.
"Compensation Committee" shall mean the Compensation Committee
of the Board.
"Consumer Price Index" shall mean the Consumer Price Index for
All Urban Consumers (1982-84=100) for all cities as reported by the United
States Bureau of Labor Statistics.
"Contract Year" shall mean each twelve (12) consecutive month
period during the Employment Term which begins on the Effective Date and each
annual anniversary thereof.
"Employment Inducements" shall mean any compensation,
including, without limitation, signing bonuses and stock options, that are paid
or granted to senior officers of the Company in connection with such officers'
initial hiring by the Company, or in connection with any amendments to or
extensions of the term of such senior officers' employment agreements with the
Company.
"Employment Term" shall mean the period beginning on the
Effective Date and ending on the close of business on the effective date of the
Executive's termination of employment with the Company.
"Excise Tax" shall mean the taxes imposed by Code Section
4999.
"Expiration Date" shall have the meaning ascribed to such term
in Section 2.
"Good Reason" shall mean (a) the Company's material breach of
any provision hereof, (b) the Executive no longer directly reporting to Jeffrey
A. Marcus or Thomas O. Hicks, (c) any adverse change in the Executive's job
responsibilities, duties, functions, status, offices, title, perquisites or
support staff, (d) relocation of the Executive's regular work address by more
than twenty (20) miles without his consent, (e) a Change in Operations, or (f) a
Change in Control; provided, however, that the Executive shall give the Company
written notice of any actions (other than those set out in subsections (e) or
(f) above) alleged to constitute Good Reason and the Company shall have a
reasonable opportunity to cure any such alleged Good Reason.
"Option Agreement" shall mean the agreement between the
Executive and the Company pursuant to which any Option is granted to the
Executive.
"Option Plan" shall mean the 1998 Chancellor Media Corporation
Non-Qualified Stock Option Plan, as amended from time to time, and any successor
thereto, subject to
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obtaining stockholder's approval of the Option Plan (which will be submitted to
the Company's stockholders at the 1998 annual meeting of stockholders with the
recommendation of the Board).
"Options" shall mean the non-qualified stock options to be
granted to the Executive hereunder.
"Permanent Disability" shall mean the Executive's inability to
perform the duties contemplated by this Agreement by reason of a physical or
mental disability or infirmity which has continued for more than ninety (90)
working days (excluding vacation) in any twelve (12) consecutive month period as
determined by the Board. The Executive agrees to submit such medical evidence
regarding such disability or infirmity as is reasonably requested by the Board.
"Related Parties" shall mean with respect to any person (a)
the spouse and lineal ascendants and descendants of such person, and any sibling
of any of such persons and (b) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or persons
beneficially holding an eighty percent (80%) or more controlling interest of
which consist of persons referred to in subsection (a) above.
"Termination of Employment" shall mean the first to occur of
the following events:
(a) the date of death of the Executive;
(b) the effective date specified in the Company's
written notice to the Executive of the termination of his employment as
a result of his Permanent Disability, which effective date shall not be
earlier than the ninety-first (91st) working day (excluding vacation)
following the commencement of the Executive's inability to perform his
duties hereunder;
(c) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment without Cause;
(d) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment for Cause;
(e) the effective date specified in the Executive's
written notice to the Company of the Executive's termination of his
employment for Good Reason;
(f) the effective date specified in the Executive's
written notice to the Company of the Executive's termination of his
employment without Good Reason; and
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<PAGE> 5
(g) the date the Executive's employment terminates
pursuant to Section 2.
"Termination without Cause" shall mean a termination by the
Company of the Executive's employment without Cause.
2. EMPLOYMENT
The Company agrees to continue the employment of the
Executive, and the Executive agrees to continue to provide services to the
Company from the date of this Agreement until the close of business on the fifth
(5th) anniversary of the Effective Date (the "Expiration Date"), unless the
Executive's employment is earlier terminated pursuant to a Termination of
Employment. The Executive will serve the Company subject to the general
supervision, advice and direction of the Board and the Chief Executive Officer
and upon the terms and conditions set forth in this Agreement.
3. TITLE AND DUTIES
(a) The Executive's job title shall be Senior Vice-President -
Strategic Development of the Company (and any new multi-media company formed
with the Company). During the Employment Term the Executive shall have such
authority and duties as are usual and customary for such position, and shall
perform such additional services and duties as the Board may from time to time
designate consistent with such position.
(b) The Executive shall report solely to the Chief Executive
Officer. Certain other senior officers of the Company, designated from time to
time by the Chief Executive Officer, may report, directly or indirectly through
other senior officers designated from time to time by the Chief Executive
Officer, to the Executive, and the Executive shall be responsible for reviewing
the performance of such senior officers of the Company.
(c) The Executive shall devote his full business time and best
efforts to the business affairs of the Company; however, the Executive may
devote reasonable time and attention to:
(i) serving as a director of, or member of a
committee of the directors of, any not-for-profit organization or
engaging in other charitable or community activities; and
(ii) serving as a director of, or member of a
committee of the directors of, the corporations or organizations for
which the Executive presently serves
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in such capacity, and such other corporations and organizations that
the Board may from time to time approve in the future; provided, that
except as specified above, the Executive may not accept employment with
any other individual or other entity, or engage in any other venture
which is indirectly or directly in conflict or competition with the
then existing business of the Company.
4. COMPENSATION AND BENEFITS
(a) Base Compensation. During the Employment Term, the Company
shall pay the Executive, in installments according to the Company's regular
payroll practice, Base Salary at the annual rate of Five Hundred Thousand
Dollars ($500,000) for the first (1st) Contract Year with increases of Twenty
Five Thousand Dollars ($25,000) per year for each subsequent Contract Year.
(b) Annual Incentive Bonus. The Executive shall be entitled to
an Annual Bonus for each calendar year during which he is employed hereunder.
Such Annual Bonus for any such calendar year shall be as determined by the
Compensation Committee in its reasonable discretion, as recommended by the Chief
Executive Officer of the Company; provided, however, the Annual Bonus shall in
no event be less than Five Hundred Thousand Dollars ($500,000) nor greater than
One Million Five Hundred Thousand Dollars ($1,500,000); provided, further, the
Annual Bonus for any partial calendar year shall be adjusted pro rata for the
portion of the calendar year contained within the Employment Term. The
Executive's Annual Bonus earned with respect to each calendar year shall be paid
at the same time as annual incentive bonuses with respect to that calendar year
are paid to other senior executives of the Company generally, but in no event
later than March 31 of the following calendar year.
(c) Stock Options.
(i) On the Agreement Date and each of the
first four (4) anniversaries of the Effective Date on which the
Executive remains employed hereunder, the Executive shall be granted an
Option to purchase One Hundred Thousand (100,000) shares of Common
Stock. In the event the Executive's employment hereunder is terminated
by the Company without Cause or by the Executive for Good Reason prior
to the Expiration Date, the Executive shall be granted, as of the date
of such Termination of Employment, a number of Options equal to Five
Hundred Thousand (500,000) minus the number of Options previously
granted pursuant to the immediately preceding sentence.
(ii) All Options described in paragraph (i)
shall be granted subject to the following terms and conditions: (A) the
Options shall be granted under and subject
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<PAGE> 7
to the Option Plan; (B) the exercise price of the Options shall be, (A)
in the case of the Options granted on the Agreement Date, $42.3125 per
share and (B) in the case of the Options granted thereafter, the last
reported sale price of the Common Stock on the Nasdaq National Market
System (or other principal trading market for the Common Stock) at the
close of the trading day immediately preceding the date as of which the
grant is made; (C) each Option shall be vested on the date of grant;
(D) each Option shall be exercisable for the ten (10) year period
following the date of grant, subject, however, to such approval by the
shareholders of the Company as is sufficient to satisfy the
requirements for listing of the Common Stock on the Nasdaq National
Market System; (E) each Option shall be evidenced by, and subject to,
an Option Agreement; and (F) the number of shares granted shall be
subject to adjustment for any subsequent stock splits.
(iii) The Option Agreements shall specify that
the Options shall remain exercisable for the periods described in
paragraph (ii) above notwithstanding any Termination of Employment.
(d) Vacation. During each complete twelve (12) month period of
the Employment Term, the Executive shall be entitled to no fewer than four (4)
weeks of paid vacation (unless, based on his length of service with the Company
and his position with the Company, the Executive is entitled to a greater number
of weeks of paid vacation under the Company's generally applicable vacation
policy, as determined by the Compensation Committee).
(e) Employee Benefit Plans. During the Employment Term, the
Executive shall be entitled to participate in all pension, profit sharing and
other retirement plans, all incentive compensation plans and all group health,
hospitalization and disability insurance plans and other employee welfare
benefit plans in which other senior executives of the Company may participate on
terms and conditions no less favorable than those which apply to such other
senior executives of the Company.
(f) Company Payment of Health Benefit Coverage. During the
Employment Term, the Company shall pay the amount of premiums or other cost
incurred for coverage of the Executive and his eligible spouse and dependent
family members under the applicable Company health benefits arrangement
(consistent with the terms of such arrangement).
(g) Life Insurance Policy. In addition to the insurance
coverage contemplated by Section 4(e), during the Employment Term the Company
shall maintain in effect term life insurance coverage for the Executive with a
death benefit of at least Five Hundred Thousand Dollars ($500,000), subject to
the Executive's insurability at standard rates and with the beneficiary or
beneficiaries, thereof designated by the Executive.
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<PAGE> 8
Notwithstanding Section 9 of this Agreement, such life insurance policy or
policies may be assigned to a trust for the benefit of any beneficiary
designated by the Executive.
(h) Automobile and Parking Allowance; Other Benefits.
(i) During the Employment Term, the Company
shall either provide the Executive with, or pay or reimburse the
Executive for (A) his purchase or lease of an automobile selected by
the Executive with a retail sales price of not more than Seventy
Thousand Dollars ($70,000); and (B) parking space at the Company's
corporate office maintained in Irving, Texas.
(ii) During the Employment Term, the Company
shall provide the Executive with, or pay or reimburse the Executive
for, the cost incurred for membership of the Executive and his spouse
and dependent family members in the athletic club of Executive's
choosing and in the country club of Executive's choosing.
(i) Most Favored Benefits. If the Company shall provide
employment related benefits (including, without limitation, benefits of the type
referred to by clauses (a) through (h) of this Section 4) in an aggregate amount
greater than or on more favorable terms and conditions (on an aggregate basis)
as are granted to any other senior executive of the Company (except for
Employment Inducements and benefits provided to the Chief Executive Officer or
Chief Operating Officer of the Company), the Executive shall be provided such
benefits in substantially comparable amount and/or under the substantially
comparable terms and conditions, as applicable, on an aggregate basis.
(j) Execution Bonus. The Executive shall be granted, as an
Employment Inducement in connection with the execution of this Agreement, an
option to purchase Three Hundred Thousand (300,000) shares of Common Stock (the
"Execution Options"), subject to the following terms and conditions: (A) the
Execution Options shall be granted under and subject to the Option Plan; (B) the
exercise price of the Execution Options shall be $42.3125 per share; (C) the
Executive Options shall be vested on the date of grant; (D) each Executive
Option shall be exercisable for the ten (10) year period following the date of
grant; and (E) each Executive Option shall be evidenced by, and subject to, an
Option Agreement.
5. REIMBURSEMENT OF EXPENSES
In addition to the compensation provided for under Section 4
hereof, upon submission of proper vouchers, the Company will pay or reimburse
the Executive for all normal and reasonable travel and entertainment expenses
incurred by the Executive during the Employment Term in connection with the
Executive's responsibilities to the Company.
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<PAGE> 9
6. TERMINATION BENEFITS
(a) Upon the termination of the Executive's employment with
the Company for any reason, the Company shall provide the Executive (or, in the
case of his death, his estate or other legal representative), (i) any Annual
Bonus earned but not yet paid with respect to the preceding calendar year, (ii)
all benefits due him under the Company's benefits plans and policies for his
services rendered to the Company prior to the date of such termination
(according to the terms of such plans and policies), (iii) not later than ninety
(90) days after such termination, in a lump sum, all Base Salary earned through
the date of such termination, and (iv) not later than ninety (90) days after
such termination, in a lump sum, any Annual Bonus earned with respect to that
portion of the calendar year prior to such termination.
(b) In the event that the Executive's employment hereunder is
terminated by the Company without Cause or by the Executive for Good Reason (but
not by reason of expiration or non-renewal of this Agreement), and subject to
the last sentence of this subsection (b), the Company shall make a one-time cash
payment to the Executive in a gross amount such that the net payments retained
by the Executive after payment of any applicable Excise Tax with respect to such
payment shall equal Two Million Dollars ($2,000,000). Such payment shall be made
at the time of any such termination without Cause or within thirty (30) days of
any such resignation for Good Reason. Such payment shall be in full satisfaction
of all obligations of the Company to Executive hereunder (other than those
obligations set forth in subsection (a)) and shall be conditioned on Executive
giving a general release of the Company and affiliates in the form used
generally by the Company in the case of the termination of employment of senior
executives.
(c) (i) In the event that the Executive elects to
terminate his employment hereunder other than for Good Reason, the
Company, in consideration for the Executive's agreement in Section
7(b), shall continue to pay him his Base Salary as set forth in Section
4(a) through the earlier of (A) the fifth (5th) anniversary of the
Effective Date or (B) the second (2nd) anniversary of such termination
of employment (the earlier of such dates, the "Cessation Date").
(ii) In addition, in such event, the Company
may, by written notice to the Executive given no later than 15 days
following his termination of employment, elect to require the Executive
to observe the provisions of Section 7(c) hereof. In such event, the
Company shall, on the last day of each calendar year through December
31, 2002 make a payment to him equal to his Average Bonus, and on the
last day of the calendar year which includes the Cessation Date make a
payment to him equal to the product of his Average Bonus and the
fraction of such calendar year which precedes the Cessation Date.
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(d) In the event that the Executive's employment is terminated
by reason of expiration or non-renewal of this Agreement the Company shall make
a one-time cash payment to the Executive equal to two (2) times the amount of
his annual Base Salary payable for the Contract Year ending on (or in which
falls) the date of Termination of Employment. Such payment shall be made at the
time of such Termination of Employment. Such payment shall be in full
satisfaction of all obligations of the Company to the Executive hereunder (other
than those obligations set forth in subsection (a)) and shall be conditioned on
the Executive giving a general release of the Company and affiliates in the form
used generally by the Company in the case of the termination of employment of
senior executives.
(e) In the event of any Termination of Employment, the
Executive shall not be required to seek other employment to mitigate damages,
and any income earned by the Executive from other employment or self-employment
shall not be offset against any obligations of the Company to the Executive
under this Agreement.
7. PROTECTED INFORMATION; PROHIBITED SOLICITATION
(a) The Executive hereby recognizes and acknowledges that
during the course of his employment by the Company, the Company will furnish,
disclose or make available to the Executive confidential or proprietary
information related to the Company's business, including, without limitation,
customer lists, ideas and formatting and programming concepts and plans, that
such confidential or proprietary information has been developed and will be
developed through the Company's expenditure of substantial time and money, and
that all such confidential information could be used by the Executive and others
to compete with the Company. The Executive hereby agrees that all such
confidential or proprietary information shall constitute trade secrets, and
further agrees to use such confidential or proprietary information only for the
purpose of carrying out his duties with the Company and not to disclose such
information unless required to do so by subpoena or other legal process. No
information otherwise in the public domain (other than by an act of the
Executive in violation hereof) shall be considered confidential.
The Executive further agrees that all memoranda, notices,
files, records and other documents concerning the business of the Company, made
or compiled by the Executive during the period of his employment or made
available to him, shall be the Company's property and shall be delivered to the
Company upon its request therefor and in any event upon the termination of the
Executive's employment with the Company, provided, however, that the Executive
shall be permitted to retain copies of personal correspondence generated or
received by him during the Employment Term, subject to the use restrictions of
this Section 7(a).
(b) The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be held by the
Executive hereunder, that
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after any Termination of Employment, and through the Expiration Date the
Executive will not directly or indirectly induce any employee of any of the
Protected Companies (as defined below) to terminate such employment or to become
employed by any other media company.
(c) Should the Company make the election set forth in Section
6(c)(ii), the Executive further agrees that, from and after the Termination of
Employment and through the Expiration Date, he shall not be employed by or
perform activities on behalf of, or have an ownership interest in, (i) any radio
or television broadcasting station serving the same "Area of Dominant Influence"
(as reported by Arbitron) as any of the radio or television broadcasting
stations owned by the Company or its subsidiaries or affiliates, or the
subsidiaries or affiliates of any of the Company's direct or indirect
stockholders owning more than twenty percent (20%) of the Company (collectively
the "Protected Companies"), or (ii) any person, firm, corporation or other
entity, or in connection with any business enterprise, that is directly or
indirectly engaged in any of the radio, television, outdoor advertising or
related business activities in which the Company and its subsidiaries or the
Protected Companies have significant involvement (collectively, the "Competing
Business Areas"), in each case at the effective time of such Termination of
Employment (other than beneficial ownership of up to five percent (5%) of the
outstanding voting stock of a publicly traded company that owns such a
competitor).
(d) The restrictions in this Section 7, to the extent
applicable, shall survive the termination of this Agreement and shall be in
addition to any restrictions imposed upon the Executive by statute or at common
law.
(e) The parties hereby acknowledge that the restrictions in
this Section 7 have been specifically negotiated and agreed to by the parties
hereto and are limited only to those restrictions necessary to protect the
Protected Companies from unfair competition. The parties hereby agree that if
the scope or enforceability of any provision, paragraph or subparagraph of this
Section 7 is in any way disputed at any time, and should a court find that such
restrictions are overly broad, the court may modify and enforce the covenant to
the extent that it believes to be reasonable under the circumstances. Each
provision, paragraph and subparagraph of this Section 7 is separable from every
other provision, paragraph, and subparagraph and constitutes a separate and
distinct covenant. The Executive acknowledges that the Protected Companies
operate in major and medium sized markets throughout the United States and that
the effect of Section 7(c) may be to prevent him from working in the Competing
Business Areas after his termination of employment hereunder.
8. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in Section 7 of
this Agreement may result
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in significant and continuing injury to the Company, the monetary value of which
would be impossible to establish. Therefore, the Executive agrees that the
Company shall be entitled to apply for injunctive relief in a court of
appropriate jurisdiction. The provisions of this Section 8 shall survive the
Employment Term.
9. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs
and his personal representative or representatives, and upon the Company and Los
Angeles and their respective successors and assigns. Neither this Agreement nor
any rights or obligations hereunder may be assigned by the Executive, other than
by will or by the laws of descent and distribution.
10. NOTICES
Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at its then principal office, or to the
Executive at the address set forth in the preamble, as the case may be, or to
such other address or addresses as any party hereto may from time to time
specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 10. Notices shall be deemed given when received.
11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest
extent permitted by the laws of the State of Delaware, as in effect at the time
of the subject act or omission, and shall advance to the Executive reasonable
attorneys' fees and expenses as such fees and expenses are incurred (subject to
an undertaking from the Executive to repay such advances if it shall be finally
determined by a judicial decision which is not subject to further appeal that
the Executive was not entitled to the reimbursement of such fees and expenses)
and he will be entitled to the protection of any insurance policies the Company
may elect to maintain generally for the benefit of its directors and officers
("Directors and Officers Insurance") against all costs, charges and expenses
incurred or sustained by him in connection with any
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action, suit or proceeding to which he may be made a party by reason of his
being or having been a director, officer or employee of the Company or any of
its subsidiaries or his serving or having served any other enterprise as a
director, officer or employee at the request of the Company (other than any
dispute, claim or controversy arising under or relating to this Agreement). The
Company covenants to maintain during the Employment Term for the benefit of the
Executive (in his capacity as an officer and director of the Company) Directors
and Officers Insurance providing benefits to the Executive no less favorable,
taken as a whole, than the benefits provided to the Executive by the Directors
and Officers Insurance maintained by the Company on the date hereof; provided,
however, that the Board may elect to terminate Directors and Officers Insurance
for all officers and directors, including the Executive, if the Board determines
in good faith that such insurance is not available or is available only at
unreasonable expense.
13. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE
The Executive represents and warrants to the Company that (a)
the Executive is under no contractual or other restriction which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder or
the other rights of Company hereunder, and (b) the Executive is under no
physical or mental disability that would hinder the performance of his duties
under this Agreement.
14. DISPUTES
Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and upon
written demand of either the Executive or the Company, be finally determined and
settled by arbitration in the city of the Company's headquarters in accordance
with the rules and procedures of the American Arbitration Association, and
judgment upon the award may be entered in any court having jurisdiction thereof.
The Company shall pay the costs and expenses of such arbitration and the fees of
the Executive's counsel and experts unless the finder of fact determines that
the Company is the prevailing party in such arbitration.
15. FACILITY OF PAYMENT
All cash payments to be made by the Company to or on behalf of
the Executive hereunder shall be an obligation of and made by Los Angeles.
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16. INTENTIONALLY OMITTED
17. MISCELLANEOUS
The provisions of this Agreement shall survive the termination
of the Executive's employment with the Company. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof. This
Agreement supersedes any prior written or oral agreements or understandings
between the parties relating to the subject matter hereof. No modification or
amendment of this Agreement shall be valid unless in writing and signed by or on
behalf of the parties hereto. A waiver of the breach of any term or condition of
this Agreement shall not be deemed to constitute a waiver of any subsequent
breach of the same or any other term or condition. This Agreement is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance, shall, for
any reason and to any extent, be held invalid or unenforceable, such invalidity
and unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of which
shall be enforced to the greatest extent permitted by law. The compensation
provided to the Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable tax laws. Any amounts
payable under this Agreement to the Executive after the death of the Executive
shall be paid to the Executive's estate or legal representative. The headings in
this Agreement are inserted for convenience of reference only and shall not be a
part of or control or affect the meaning of any provision hereof.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ JEFFREY A. MARCUS
---------------------------------------
Jeffrey A. Marcus
President and Chief Executive
Officer
/s/ ERIC C. NEUMAN
----------------------------------------
Eric C. Neuman
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<PAGE> 1
EXHIBIT 10.51
EMPLOYMENT AGREEMENT
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
JAMES A. MCLAUGHLIN, JR.
This Employment Agreement (this "Agreement") is made and
entered into as of August 18, 1998 (the "Effective Date"), between Chancellor
Media Corporation, a Delaware corporation (the "Company"), Chancellor Media
Corporation of Los Angeles, a Delaware corporation ("Los Angeles") and James A.
McLaughlin, Jr. (the "Executive"), residing at 10939 Emerald Chase Drive,
Orlando, Florida 32836.
W I T N E S S E T H:
WHEREAS, the Company has a need for executive management
services; and
WHEREAS, the Executive is qualified and willing to render such
services to the Company; and
WHEREAS, the parties hereto desire to enter into an employment
agreement for the services of the Executive, on the terms and conditions as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the parties agree as
follows:
1. DEFINITIONS
The following terms used in this Agreement shall have the
meaning specified below unless the context clearly indicates the contrary:
"Annual Bonus" shall mean the annual incentive bonus payable
to the Executive described in Section 4.
"Average Bonus" shall mean the greater of (a) (i) the total of
the Annual Bonuses paid hereunder with respect to the Employment Term, divided
by (ii) the length of such portion of the Employment Term in years (including
fractions) as falls on or prior to the last December 31 thereof and (b) Six
Hundred Thousand Dollars ($600,000).
<PAGE> 2
"Base Salary" shall mean the annual base salary payable to the
Executive at the rate set forth in Section 4.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean the Executive's (a) habitual neglect of his
material duties or failure to perform his material obligations under this
Agreement, (b) refusal or failure to follow lawful directives of the Chief
Executive Officer, (c) commission of an act of fraud, theft or embezzlement, or
(d) conviction of a felony or other crime involving moral turpitude; provided,
however, that the Company shall give the Executive written notice of any
actions alleged to constitute Cause under subsections (a) and (b) above, and
the Executive shall have a reasonable opportunity (as specified by the
Compensation Committee) to cure any such alleged Cause.
"Change in Control" shall mean (a) the sale, lease or other
transfer of all or substantially all of the assets of the Company to any person
or group (as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended); (b) the adoption by the stockholders of the Company
of a plan relating to the liquidation or dissolution of the Company; (c) the
merger or consolidation of the Company with or into another entity or the
merger of another entity into the Company or any subsidiary thereof with the
effect that immediately after such transaction the stockholders of the Company
immediately prior to such transaction (or their Related Parties) hold less than
fifty percent (50%) of the total voting power of all securities generally
entitled to vote in the election of directors, managers or trustees of the
entity surviving such merger or consolidation; (d) the acquisition by any
person or group of more than fifty percent (50%) of the voting power of all
securities of the Company generally entitled to vote in the election of
directors of the Company; or (e) the majority of the Board is composed of
members who (i) have served less than twelve (12) months and (ii) were not
approved by a majority of the Board at the time of their election or
appointment.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Common Stock" shall mean $0.01 par value common stock of the
Company.
"Compensation Committee" shall mean the Compensation Committee
of the Board.
"Consumer Price Index" shall mean the Consumer Price Index for
All Urban Consumers (1982-84=100) for all cities as reported by the United
States Bureau of Labor Statistics.
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<PAGE> 3
"Contract Year" shall mean each twelve (12) consecutive month
period during the Employment Term which begins on the Effective Date and each
annual anniversary thereof.
"Contract Non-Renewal" shall mean the decision to not renew or
extend the Employment Term beyond the Expiration Date other than for Cause (as
to the Company's decision) or Good Reason (as to the Executive's decision).
"Employment Inducements" shall mean any compensation,
including, without limitation, signing bonuses and stock options, that are paid
or granted to senior officers of the Company in connection with such officers'
initial hiring by the Company, or in connection with any amendments to or
extensions of the term of such senior officers' employment agreements with the
Company.
"Employment Term" shall mean the period beginning on the
Effective Date and ending on the close of business on the effective date of the
Executive's termination of employment with the Company.
"Excise Tax" shall mean the taxes imposed by Code Section
4999.
"Execution Options" shall have the meaning ascribed to such
term in Section 4(i)(b).
"Expiration Date" shall have the meaning ascribed to such term
in Section 2.
"Good Reason" shall mean (a) the Company's material breach of
any provision hereof, (b) the Executive no longer directly reporting to the
Chief Executive Officer or such other executive designated by the Chief
Executive Officer, (c) any adverse change in the Executive's job
responsibilities (except for responsibilities relating to acquisitions),
duties, functions, status, offices, title, perquisites or support staff, (d)
relocation of the Executive's regular work address outside of the Orlando
metropolitan area without his consent, or (e) a Change in Control; provided,
however, that the Executive shall give the Company written notice of any
actions (other than that set out in subsection (e) above) alleged to constitute
Good Reason and the Company shall have a reasonable opportunity to cure any
such alleged Good Reason.
"Minimal Time and Attention" shall mean such limited efforts
and duties of the Executive relating to the activities of SMD and Adventure
(each as hereafter defined) which do not interfere in any respect with the
Executive's duties under Section 3(a) hereunder.
"Option Agreement" shall mean the agreement between the
Executive and the Company pursuant to which any Options are granted to the
Executive.
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"Option Plan" shall mean the 1998 Chancellor Media Corporation
Non-Qualified Stock Option Plan, as amended from time to time, and any
successor thereto.
"Options" shall mean the non-qualified stock options to be
granted to the Executive hereunder.
"Permanent Disability" shall mean the Executive's inability to
perform the duties contemplated by this Agreement by reason of a physical or
mental disability or infirmity which has continued for more than ninety (90)
working days (excluding vacation) in any twelve (12) consecutive month period
as determined by the Board. The Executive agrees to submit such medical
evidence regarding such disability or infirmity as is reasonably requested by
the Board.
"Related Parties" shall mean with respect to any person (a)
the spouse and lineal ascendants and descendants of such person, and any
sibling of any of such persons and (b) any trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or persons
beneficially holding an eighty percent (80%) or more controlling interest of
which consist of persons referred to in subsection (a) above.
"Termination of Employment" shall mean the first to occur of
the following events:
(a) the date of death of the Executive;
(b) the effective date specified in the Company's
written notice to the Executive of the termination of his employment
as a result of his Permanent Disability, which effective date shall
not be earlier than the ninety-first (9st) working day (excluding
vacation) following the commencement of the Executive's inability to
perform his duties hereunder;
(c) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment without Cause;
(d) the effective date specified in the Company's
written notice to the Executive of the Company's termination of his
employment for Cause;
(e) the effective date specified in the
Executive's written notice to the Company of the Executive's
termination of his employment for Good Reason;
(f) the effective date specified in the
Executive's written notice to the Company of the Executive's
termination of his employment without Good Reason; and
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<PAGE> 5
(g) the date the Executive's employment
terminates pursuant to Section 2.
"Termination without Cause" shall mean a termination by the
Company of the Executive's employment without Cause.
2. EMPLOYMENT
The Company agrees to continue the employment of the
Executive, and the Executive agrees to continue to provide services to the
Company from the date of this Agreement until the close of business on the
fifth (5th) anniversary of the Effective Date (the "Expiration Date"), unless
the Executive's employment is earlier terminated pursuant to a Termination of
Employment. The Executive will serve the Company subject to the general
supervision, advice and direction of the Board and the Chief Executive Officer
and upon the terms and conditions set forth in this Agreement.
3. TITLE AND DUTIES
(a) The Executive's job title shall be President of the
Chancellor Outdoor Group, a division of the Company. Subject to the last
sentence of Section 13 of this Agreement, during the Employment Term the
Executive shall have such authority and duties as are usual and customary for
similar positions within the Company, and shall perform such additional
services and duties as the Chief Executive Officer may from time to time
designate consistent with such position.
(b) The Executive shall report solely to the Chief
Executive Officer or to such other executive designated by the Chief Executive
Officer. Certain other senior officers of the Company, designated from time to
time by the Chief Executive Officer, may report, directly or indirectly through
other senior officers designated from time to time by the Chief Executive
Officer, to the Executive, and the Executive shall be responsible for reviewing
the performance of such senior officers of the Company.
(c) The Executive shall devote his full business time and
best efforts to the business affairs of the Company; however, the Executive
may:
(i) devote reasonable time and attention to serving as
a director of, or member of a committee of the directors of, any
not-for-profit organization or engaging in other charitable or
community activities;
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<PAGE> 6
(ii) devote Minimal Time and Attention to advisory
activities for the SMD, LLP, a Georgia limited liability partnership
("SMD") and Adventure Outdoor Advertising, Inc., a Florida corporation
("Adventure"); provided, however, the Executive shall not devote any
time and attention to SMD and/or Adventure after December 31, 1999;
and
(iii) devote reasonable time and attention to serving as
a director of, or member of a committee of the directors of, such
other corporations and organizations that the Chief Executive Officer
may from time to time approve in the future.
4. COMPENSATION AND BENEFITS
(a) Base Compensation. During the Employment Term, the
Company shall pay the Executive, in installments according to the Company's
regular payroll practice, Base Salary at the annual rate of Five Hundred
Thousand Dollars ($500,000) for the first (1st) Contract Year; and for each
subsequent Contract Year an amount equal to the product of
(i) the Base Salary for the immediately preceding
Contract Year; and
(ii) the ratio of the Consumer Price Index for the last
complete calendar month in such preceding Contract Year to the
Consumer Price Index for the same month in the year preceding such
preceding Contract Year.
(b) Annual Incentive Bonus. The Executive shall be
entitled to an Annual Bonus of up to One Million Dollars ($1,000,000) for each
calendar year during which he is employed hereunder, subject to increases at
the discretion of the Compensation Committee based upon the recommendation of
the Chief Executive Officer of the Company. For each such calendar year
one-half of the Annual Bonus shall be based upon the Executive's performance
and one-half of the Annual Bonus shall be discretionary, in each case as
measured against standards and budgets to be mutually agreed between the
Executive and the Chief Executive Officer, with the amounts of the bonuses to
be determined by the Compensation Committee based upon the recommendation of
the Chief Executive Officer of the Company; provided, however, the Annual Bonus
for any partial calendar year shall be adjusted pro rata for the portion of the
calendar year contained within the Employment Term. The Executive's Annual
Bonus earned with respect to each calendar year shall be paid at the same time
as annual incentive bonuses with respect to that calendar year are paid to
other senior executives of the Company generally, but in no event later than
March 31 of the following calendar year.
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<PAGE> 7
(c) Stock Options.
(i) On the Effective Date and each of the first four
(4) anniversaries of the Effective Date on which the Executive remains
employed hereunder, the Executive shall be granted an Option to
purchase Sixty Thousand (60,000) shares of Common Stock. In the event
the Executive's employment hereunder is terminated by the Company
without Cause or by the Executive for Good Reason prior to the
Expiration Date, the Executive shall be granted, as of the date of
such Termination of Employment, a number of Options equal to Three
Hundred Thousand (300,000) minus the number of Options previously
granted pursuant to the immediately preceding sentence.
(ii) All Options described in paragraph (i) shall be
granted subject to the following terms and conditions: (A) the Options
shall be granted under and subject to the Option Plan; (B) the
exercise price of the Options shall be, (A) in the case of the Options
granted on the Effective Date, $48.375 per share and (B) in the case
of the Options granted thereafter, the last reported sale price of the
Common Stock on the Nasdaq National Market System (or other principal
trading market for the Common Stock) at the close of the trading day
immediately preceding the date as of which the grant is made; (C)
twenty-five percent (25%) of the Options shall vest on each of the
first four (4) annual anniversaries of the date of grant, provided
that in the event of a Contract Non-Renewal, all such Options shall
vest and become exercisable on the Expiration Date and in the event of
a Termination of Employment by the Executive for Good Reason or a
Termination of Employment by the Company other than for Cause, all
such Options shall vest and become exercisable on the date of such
Termination of Employment; (D) each Option shall be exercisable for
the ten (10) year period following the date of grant; (E) each Option
shall be evidenced by, and subject to, an Option Agreement; and (F)
the number of shares granted shall be subject to adjustment for any
subsequent stock splits.
(iii) Except as otherwise provided in paragraph (ii)
above, the Option Agreements shall specify that the Options shall
remain exercisable for the periods described in paragraph (ii) above
notwithstanding any Termination of Employment, other than a
Termination of Employment by the Company for Cause.
(d) Vacation. During each complete twelve (12) month
period of the Employment Term, the Executive shall be entitled to no fewer than
four (4) weeks of paid vacation (unless, based on his length of service with
the Company and his position with the Company, the Executive is entitled to a
greater number of weeks of paid vacation under the Company's generally
applicable vacation policy, as determined by the Compensation Committee).
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<PAGE> 8
(e) Employee Benefit Plans. During the Employment Term,
the Executive shall be entitled to participate in all pension, profit sharing
and other retirement plans, all incentive compensation plans and all group
health, hospitalization and disability insurance plans and other employee
welfare benefit plans in which other senior executives of the Company may
participate on terms and conditions no less favorable than those which apply to
such other senior executives of the Company.
(f) Company Payment of Health Benefit Coverage. During
the Employment Term, the Company shall pay the amount of premiums or other cost
incurred for coverage of the Executive and his eligible spouse and dependent
family members under the applicable Company health benefits arrangement
(consistent with the terms of such arrangement).
(g) Life Insurance Policy. In addition to the insurance
coverage contemplated by Section 4(e), during the Employment Term the Company
shall maintain in effect term life insurance coverage for the Executive with a
death benefit of at least Five Hundred Thousand Dollars ($500,000), subject to
the Executive's insurability at standard rates and with the beneficiary or
beneficiaries, thereof designated by the Executive. Notwithstanding Section 9
of this Agreement, such life insurance policy or policies may be assigned to a
trust for the benefit of any beneficiary designated by the Executive.
(h) Automobile and Parking Allowance; Other Benefits.
(i) During the Employment Term, the Company
shall (A) either provide the Executive with, or pay or reimburse the
Executive for his purchase or lease of an automobile selected by the
Executive with a retail sales price of not more than Seventy Thousand
Dollars ($70,000), which automobile may be traded no more frequently
than every three (3) years, and (B) pay all insurance and all other
expenses related to the business operation of such automobile.
(ii) During the Employment Term, the Company
shall reimburse the Executive for the monthly membership fees in
connection with (A) the membership of the Executive and his spouse and
dependent family members in the country club of Executive's choosing,
and (B) the membership of the Executive and his spouse and dependent
family members in an athletic club of Executive's choosing.
(i) Execution Bonus. The Executive shall be paid or
granted, as the case may be, the following Employment Inducements in connection
with the execution of this Agreement:
(a) Within fifteen (15) days after the execution
and delivery of this Agreement, the Company shall pay to the Executive
a one-time execution bonus in the gross amount of One Million Dollars
($1,000,000).
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<PAGE> 9
(b) The Executive shall be granted an option to
purchase Three Hundred Thousand (300,000) shares of Common Stock
(collectively, the "Execution Options"), subject to the following
terms and conditions: (A) the Execution Options shall be granted under
and subject to the Option Plan; (B) the exercise price of the
Execution Options shall be $48.375 per share (the price per share at
the close of trading on August 7, 1998); (C) twenty-five percent (25%)
of the Execution Options shall vest on the Effective Date and
twenty-five percent (25%) of the Execution Options shall vest on each
of the first three (3) annual anniversaries of the date of grant,
provided that in the event of a Contract Non-Renewal, all such
Execution Options shall vest and become exercisable on the Expiration
Date and in the event of a Termination of Employment by the Executive
for Good Reason or a Termination of Employment by the Company other
than for Cause, all such Execution Options shall vest and become
exercisable on the date of such Termination of Employment; (D) each
Execution Option shall be exercisable for the ten (10) year period
following the date of grant; (E) each Execution Option shall be
evidenced by, and subject to, an Option Agreement; and (F) the number
of shares granted shall be subject to adjustment for any subsequent
stock splits.
(c) Except as otherwise provided in paragraph (b)
above, the Option Agreements shall specify that the Execution Options
shall remain exercisable for the periods described in paragraph (b)
above notwithstanding any Termination of Employment, other than a
Termination of Employment by the Company for Cause.
5. REIMBURSEMENT OF EXPENSES
In addition to the compensation provided for under Section 4
hereof, upon submission of proper vouchers, the Company will pay or reimburse
the Executive for all normal and reasonable travel and entertainment expenses
incurred by the Executive during the Employment Term in connection with the
Executive's responsibilities to the Company.
6. TERMINATION BENEFITS
(a) Upon the termination of the Executive's employment
with the Company for any reason, the Company shall provide the Executive (or,
in the case of his death, his estate or other legal representative), (i) any
Annual Bonus earned but not yet paid with respect to the preceding calendar
year, (ii) all benefits due him under the Company's benefits plans and policies
for his services rendered to the Company prior to the date of such termination
(according to the terms of such plans and policies), (iii) not later than
ninety (90) days after such termination, in a lump sum, all Base Salary earned
through the date of such termination, and (iv) not later than ninety (90) days
after such termination, in a lump sum, any Annual Bonus earned with respect to
that portion of the calendar year prior to such termination.
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<PAGE> 10
(b) In the event that the Executive's employment
hereunder is terminated by the Company without Cause or by the Executive for
Good Reason (but not by reason of expiration or non-renewal of this Agreement),
and subject to the last sentence of this subsection (b), the Company shall make
a one-time cash payment to the Executive in a gross amount such that the net
payments retained by the Executive after payment of any applicable Excise Tax
with respect to such payment shall equal One Million Dollars ($1,000,000).
Such payment shall be made at the time of any such termination without Cause or
within thirty (30) days of any such resignation for Good Reason. Such payment
shall be in full satisfaction of all obligations of the Company to Executive
hereunder (other than those obligations set forth in subsection (a)) and shall
be conditioned on Executive giving a general release of the Company and
affiliates in the form used generally by the Company in the case of the
termination of employment of senior executives.
(c) (i) In the event that the Executive elects
to terminate his employment hereunder other than for Good Reason, the
Company, in consideration for the Executive's agreement in Section
7(b), shall continue to pay him one-half of his Base Salary as set
forth in Section 4(a) through the earlier of (A) the fifth (5th)
anniversary of the Effective Date or (B) the second (2nd) anniversary
of such termination of employment (the earlier of such dates, the
"Cessation Date").
(ii) In addition, in such event, the Company
may, by written notice to the Executive given no later than 15 days
following his termination of employment, elect to require the
Executive to observe the provisions of Section 7(c) hereof. In such
event, the Company shall, on the last day of each calendar year
preceding the Cessation Date, make a payment to him equal to one-half
of his Average Bonus, and on the last day of the calendar year which
includes the Cessation Date make a payment to him equal to the product
of one-half of his Average Bonus and the fraction of such calendar
year which precedes the Cessation Date.
(d) In the event of any Termination of Employment, the
Executive shall not be required to seek other employment to mitigate damages,
and any income earned by the Executive from other employment or self-employment
shall not be offset against any obligations of the Company to the Executive
under this Agreement.
7. PROTECTED INFORMATION; PROHIBITED SOLICITATION
(a) The Executive hereby recognizes and acknowledges that
during the course of his employment by the Company, the Company will furnish,
disclose or make available to the Executive confidential or proprietary
information related to the Company's business, including, without limitation,
customer lists, ideas and formatting and programming concepts and plans, that
such confidential or proprietary information has been developed and
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will be developed through the Company's expenditure of substantial time and
money, and that all such confidential information could be used by the
Executive and others to compete with the Company. The Executive hereby agrees
that all such confidential or proprietary information shall constitute trade
secrets, and further agrees to use such confidential or proprietary information
only for the purpose of carrying out his duties with the Company and not to
disclose such information unless required to do so by subpoena or other legal
process. No information otherwise in the public domain (other than by an act
of the Executive in violation hereof) shall be considered confidential.
The Executive further agrees that all memoranda, notices,
files, records and other documents concerning the business of the Company, made
or compiled by the Executive during the period of his employment or made
available to him, shall be the Company's property and shall be delivered to the
Company upon its request therefor and in any event upon the termination of the
Executive's employment with the Company, provided, however, that the Executive
shall be permitted to retain copies of personal correspondence generated or
received by him during the Employment Term, subject to the use restrictions of
this Section 7(a).
(b) The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be held by the
Executive hereunder, that after any Termination of Employment, and through the
Expiration Date the Executive will not directly or indirectly induce any
employee of any of the Protected Companies (as defined below) to terminate such
employment or to become employed by any other media company.
(c) Should the Company make the election set forth in
Section 6(c)(ii), the Executive further agrees that, from and after the
Termination of Employment and through the Expiration Date, he shall not be
employed by or perform activities on behalf of, or have an ownership interest
in, (i) any radio or television broadcasting station or outdoor advertising
company serving the same "Area of Dominant Influence" (as reported by Arbitron)
as any of the radio or television broadcasting stations or outdoor advertising
company owned by the Company or its subsidiaries or affiliates, or the
subsidiaries or affiliates of any of the Company's direct or indirect
stockholders owning more than twenty percent (20%) of the Company (collectively
the "Protected Companies"), or (ii) any person, firm, corporation or other
entity, or in connection with any business enterprise, that is directly or
indirectly engaged in any of the radio, television, outdoor advertising or
related business activities in which the Company and its subsidiaries or the
Protected Companies have significant involvement (collectively, the "Competing
Business Areas"), in each case at the effective time of such Termination of
Employment (other than beneficial ownership of up to five percent (5%) of the
outstanding voting stock of a publicly traded company that owns such a
competitor).
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(d) The restrictions in this Section 7, to the extent
applicable, shall survive the termination of this Agreement and shall be in
addition to any restrictions imposed upon the Executive by statute or at common
law.
(e) The parties hereby acknowledge that the restrictions
in this Section 7 have been specifically negotiated and agreed to by the
parties hereto and are limited only to those restrictions necessary to protect
the Protected Companies from unfair competition. The parties hereby agree that
if the scope or enforceability of any provision, paragraph or subparagraph of
this Section 7 is in any way disputed at any time, and should a court find that
such restrictions are overly broad, the court may modify and enforce the
covenant to the extent that it believes to be reasonable under the
circumstances. Each provision, paragraph and subparagraph of this Section 7 is
separable from every other provision, paragraph, and subparagraph and
constitutes a separate and distinct covenant. The Executive acknowledges that
the Protected Companies operate in major and medium sized markets throughout
the United States and that the effect of Section 7(c) may be to prevent him
from working in the Competing Business Areas after his termination of
employment hereunder.
8. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in Section 7
of this Agreement may result in significant and continuing injury to the
Company, the monetary value of which would be impossible to establish.
Therefore, the Executive agrees that the Company shall be entitled to apply for
injunctive relief in a court of appropriate jurisdiction. The provisions of
this Section 8 shall survive the Employment Term.
9. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs
and his personal representative or representatives, and upon the Company and
Los Angeles and their respective successors and assigns. Neither this
Agreement nor any rights or obligations hereunder may be assigned by the
Executive, other than by will or by the laws of descent and distribution.
10. NOTICES
Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at its then principal office, or to the
Executive at the address set forth in the preamble, as the case may be, or to
such other address or addresses as any party hereto may from time to time
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specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 10. Notices shall be deemed given when received.
11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest
extent permitted by the laws of the State of Delaware, as in effect at the time
of the subject act or omission, and shall advance to the Executive reasonable
attorneys' fees and expenses as such fees and expenses are incurred (subject to
an undertaking from the Executive to repay such advances if it shall be finally
determined by a judicial decision which is not subject to further appeal that
the Executive was not entitled to the reimbursement of such fees and expenses)
and he will be entitled to the protection of any insurance policies the Company
may elect to maintain generally for the benefit of its directors and officers
("Directors and Officers Insurance") against all costs, charges and expenses
incurred or sustained by him in connection with any action, suit or proceeding
to which he may be made a party by reason of his being or having been a
director, officer or employee of the Company or any of its subsidiaries or his
serving or having served any other enterprise as a director, officer or
employee at the request of the Company (other than any dispute, claim or
controversy arising under or relating to this Agreement). The Company
covenants to maintain during the Employment Term for the benefit of the
Executive (in his capacity as an officer and director of the Company) Directors
and Officers Insurance providing benefits to the Executive no less favorable,
taken as a whole, than the benefits provided to the Executive by the Directors
and Officers Insurance maintained by the Company on the date hereof; provided,
however, that the Board may elect to terminate Directors and Officers Insurance
for all officers and directors, including the Executive, if the Board
determines in good faith that such insurance is not available or is available
only at unreasonable expense.
13. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE
The Executive represents and warrants to the Company that (a)
the Executive is under no contractual or other restriction which is
inconsistent with the execution of this Agreement, the performance of his
duties hereunder or the other rights of Company hereunder, and (b) the
Executive is under no physical or mental disability that would hinder the
13
<PAGE> 14
performance of his duties under this Agreement. Notwithstanding the foregoing,
the parties hereto recognize that the Executive is restricted from certain
activities within the State of Florida and in areas of Chattanooga, Tennessee
and Myrtle Beach, South Carolina, by the terms of an employment agreement with
Peterson Acquisition, Inc. ("Peterson"), the terms of which are, to the best of
the Executive's knowledge, presently enforceable by Clear Channel
Communications, Inc., pursuant to subsequent acquisition transactions involving
the business operations of Peterson (the "Clear Channel Agreement"), and
accordingly the Executive shall have no responsibilities that would violate the
non-competition provisions of the Clear Channel Agreement until the earlier to
occur of (i) January 1, 1999 or (ii) such time as the Executive obtains a
waiver of such non-competition provisions.
14. DISPUTES
Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and
upon written demand of either the Executive or the Company, be finally
determined and settled by arbitration in the city of the Company's headquarters
in accordance with the rules and procedures of the American Arbitration
Association, and judgment upon the award may be entered in any court having
jurisdiction thereof. The Company shall pay the costs and expenses of such
arbitration and the fees of the Executive's counsel and experts unless the
finder of fact determines that the Company is the prevailing party in such
arbitration.
15. FACILITY OF PAYMENT
All cash payments to be made by the Company to or on behalf of
the Executive hereunder shall be an obligation of and made by Los Angeles.
16. MISCELLANEOUS
The provisions of this Agreement shall survive the termination
of the Executive's employment with the Company. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof. This
Agreement supersedes any prior written or oral agreements or understandings
between the parties relating to the subject matter hereof. No modification or
amendment of this Agreement shall be valid unless in writing and signed by or
on behalf of the parties hereto. A waiver of the breach of any term or
condition of this Agreement shall not be deemed to constitute a waiver of any
subsequent breach of the same or any other term or condition. This Agreement
is intended to be performed in accordance with, and only to the extent
permitted by, all applicable laws, ordinances, rules and regulations. If any
provision of this Agreement, or the application thereof to any person or
circumstance,
14
<PAGE> 15
shall, for any reason and to any extent, be held invalid or unenforceable, such
invalidity and unenforceability shall not affect the remaining provisions
hereof and the application of such provisions to other persons or
circumstances, all of which shall be enforced to the greatest extent permitted
by law. The compensation provided to the Executive pursuant to this Agreement
shall be subject to any withholdings and deductions required by any applicable
tax laws. Any amounts payable under this Agreement to the Executive after the
death of the Executive shall be paid to the Executive's estate or legal
representative. The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the meaning of
any provision hereof. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be an original, but such
counterparts shall together constitute one and the same agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
<PAGE> 16
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ JEFFREY A. MARCUS
-----------------------------------------
Jeffrey A. Marcus
President and Chief Executive Officer
/s/ JEFFREY A. MCLAUGHLIN, JR.
--------------------------------------------
James A. McLaughlin, Jr.
16
<PAGE> 1
EXHIBIT 12.1
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS)
<TABLE>
<CAPTION>
ACTUAL ACTUAL
SIX SIX PRO FORMA PRO FORMA
MONTHS MONTHS YEAR SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED ENDED ENDED ENDED
------------------------------------------------- JUNE 30, JUNE 30, DECEMBER 31, JUNE 30,
1993 1994 1995 1996 1997 1997 1998 1997 1998
-------- ------- ------- -------- ------- -------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income (loss) before
income taxes........... $(20,749) $ 39 $(5,658) $(19,090) $(6,692) $ 8,118 $(101,465) $(354,666) $(207,885)
Fixed charges............ 15,086 15,252 20,854 40,461 89,325 24,413 96,640 382,287 191,304
-------- ------- ------- -------- ------- ------- --------- --------- ---------
Earnings as
adjusted(A)............ $ (5,663) $15,291 $15,196 $ 21,371 $82,633 $32,531 $ (4,825) $ 27,621 $ (16,581)
======== ======= ======= ======== ======= ======= ========= ========= =========
Fixed Charges:
Interest expense......... $ 13,878 $13,809 $19,199 $ 37,527 $85,017 $22,741 $ 92,358 $ 371,516 $ 185,758
Amortization of deferred
financing costs........ 728 712 631 1,113 1,337 590 1,438 4,875 2,438
Rents under leases
representative of an
interest factor(1)..... 480 731 1,024 1,821 2,971 1,082 2,844 5,896 3,108
-------- ------- ------- -------- ------- ------- --------- --------- ---------
Fixed charges as
adjusted(B).............. 15,086 15,252 20,854 40,461 89,325 24,413 96,640 382,287 191,304
======== ======= ======= ======== ======= ======= ========= ========= =========
Ratio of earnings to fixed
charges (A) divided by
(B)...................... -- 1.0 -- -- -- 1.33 -- -- --
Deficiency of earnings to
fixed charges............ $ 20,749 $ -- $ 5,658 $ 19,090 $ 6,692 $ -- $ 101,465 $ 354,666 $ 207,885
</TABLE>
- -------------------------
(1) Management of CMCLA believes approximately one-third of rental and lease
expense is representative of the interest component of rent expense.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We consent to the inclusion in this Registration Statement on Form S-4 of
Chancellor Media Corporation of Los Angeles of our reports dated February 10,
1998, except for Notes 2(b) paragraphs 1 and 3-5 as to which the date is
February 20, 1998 and 9(a) as to which the date is March 13, 1998, on our audits
of the consolidated financial statements and financial statement schedule of
Chancellor Media Corporation of Los Angeles and Subsidiaries as of December 31,
1997 and for the year then ended. We also consent to the reference to our firm
under the captions "Experts".
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
November 5, 1998
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We consent to the use of our reports included herein and to the reference to our
firm under the heading "Experts."
KPMG Peat Marwick LLP
Dallas, Texas
November 5, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We consent to the inclusion in this Registration Statement on Form S-4 of
Chancellor Media Corporation of Los Angeles of our report dated February 13,
1997, except for Note 15 as to which the date is February 19, 1997, on our
audits of the consolidated financial statements of Chancellor Radio Broadcasting
Company and Subsidiaries as of December 31, 1995 and 1996 and for each of the
three years in the period ended December 31, 1996. We also consent to the
reference to our firm under the caption "Experts".
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
November 5, 1998
<PAGE> 1
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We consent to the use of our report included herein and to the reference to our
firm under the heading "Experts."
KPMG Peat Marwick LLP
St. Petersburg, Florida
November 5, 1998
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation of Los Angeles:
As independent public accountants, we hereby consent to the use of our report
dated March 31, 1997 (and to all references to our Firm) included in this
Registration Statement on Form S-4 of Chancellor Media Corporation of Los
Angeles.
Arthur Andersen LLP
Washington, D.C.
November 5, 1998
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation of Los Angeles:
We hereby consent to the use in the Prospectus constituting a part of Chancellor
Media Corporation of Los Angeles' Registration Statement on Form S-4 of our
report dated September 17, 1998, relating to the financial statements of the
Outdoor Advertising Division of Whiteco Industries, Inc., which are contained in
the Prospectus. We also consent to the reference to us under the caption
"Experts" in the Prospectus.
BDO Seidman, LLP
Chicago, Illinois
November 5, 1998
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER
UNREGISTERED 9% SENIOR SUBORDINATED NOTES DUE 2008
OF
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED NOVEMBER , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON DECEMBER , 1998 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED BY THE COMPANY.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
Deliver to:
The Bank of New York, Exchange Agent
<TABLE>
<S> <C>
By Registered or Certified Mail: By Hand or Overnight Delivery:
The Bank of New York
The Bank of New York 101 Barclays Street
101 Barclays Street Corporate Trust Services Window
Floor 7-E Ground Level
New York, New York 10286 New York, New York 10286
Attn: Chris Brown Attn: Chris Brown
By Facsimile:
(Eligible Institutions Only)
(212) 815-6339
For Information or
Confirmation by Telephone:
(212) 815-4997
Originals of all documents sent by facsimile should be sent promptly by registered or
certified mail, by hand or by overnight delivery service.
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OR TRANSMISSION OF
INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
IF YOU WISH TO EXCHANGE UNREGISTERED 9% SENIOR SUBORDINATED NOTES DUE 2008,
FOR AN EQUAL AGGREGATE PRINCIPAL AMOUNT OF REGISTERED 9% SENIOR SUBORDINATED
NOTES DUE 2008, PURSUANT TO THE EXCHANGE OFFER, YOU MUST VALIDLY TENDER (AND NOT
WITHDRAW) OLD NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
SIGNATURES MUST BE PROVIDED.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE
COMPLETING THIS LETTER OF TRANSMITTAL.
<PAGE> 2
DESCRIPTION OF TENDERED OLD NOTES
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------
AGGREGATE
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S) CERTIFICATE PRINCIPAL AMOUNT
AS IT APPEARS ON THE 9% SENIOR SUBORDINATED NOTES DUE 2008 NUMBER(S) OF OLD NOTES
(PLEASE FILL IN, IF BLANK) OF OLD NOTES TENDERED
- ------------------------------------------------------------------------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
TOTAL PRINCIPAL
AMOUNT OF OLD
NOTES TENDERED
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
LADIES AND GENTLEMEN:
1. The undersigned hereby tenders to Chancellor Media Corporation of Los
Angeles, a Delaware corporation (the "Company"), the 9% Senior Subordinated
Notes due 2008 (the "Old Notes"), described above pursuant to the Company's
offer of $1,000 principal amount of 9% Senior Subordinated Notes due 2008 (the
"New Notes"), in exchange for each $1,000 principal amount of the Old Notes,
upon the terms and subject to the conditions contained in the Prospectus dated
November , 1998 (the "Prospectus"), receipt of which is hereby acknowledged,
and in this Letter of Transmittal (which together constitute the "Exchange
Offer").
2. The undersigned hereby represents and warrants that it has full
authority to tender the Old Notes described above. The undersigned will, upon
request, execute and deliver any additional documents deemed by the Company to
be necessary or desirable to complete the tender of Old Notes.
3. The undersigned understands that the tender of the Old Notes pursuant to
all of the procedures set forth in the Prospectus will constitute an agreement
between the undersigned and the Company as to the terms and conditions set forth
in the Prospectus.
4. Unless the box under the heading "Special Registration Instructions" is
checked, the undersigned hereby represents and warrants that:
(i) the New Notes acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the undersigned, whether or
not the undersigned is the holder;
(ii) neither the undersigned nor any such other person is engaging in
or intends to engage in a distribution of such New Notes;
(iii) neither the undersigned nor any such other person has an
arrangement or understanding with any person to participate in the
distribution of such New Notes; and
(iv) neither the holder nor any such other person is an "affiliate,"
as such term is defined under Rule 405 promulgated under the Securities Act
of 1933, as amended (the "Securities Act"), of the Company.
5. The undersigned may, if, and only if, unable to make all of the
representations and warranties contained in Item 4 above, elect to have its Old
Notes registered in the shelf registration described in the Registration Rights
Agreement, dated as of September 30, 1998, between the Company, the Guarantors
and the Initial Purchaser in the form filed as an exhibit to the Registration
Statement (the "Registration Agreement") (all terms used in this Item 5 with
their initial letters capitalized, unless otherwise defined herein, shall have
the meanings given them in the Registration Agreement). Such election may be
made by checking the box under "Special Registration Instructions" on page 5. By
making such election, the undersigned agrees, jointly and severally, as a holder
of Transfer Restricted Securities participating in a shelf registration, to
indemnify and hold harmless each of the Issuers, their directors and officers
and each Person who controls each of the Issuers within the meaning of Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), against any and all losses, claims, damages and
liabilities whatsoever (including, without limitation, the reasonable legal and
other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Shelf Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the
<PAGE> 4
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with information relating to the undersigned furnished to the Issuers in writing
by or on behalf of the undersigned expressly for use therein. Any such
indemnification shall be governed by the terms and subject to the conditions set
forth in the Registration Agreement, including, without limitation, the
provisions regarding notice, retention of counsel, contribution and payment of
expenses set forth therein. The above summary of the indemnification provision
of the Registration Agreement is not intended to be exhaustive and is qualified
in its entirety by reference to the Registration Agreement.
6. If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
New Notes. If the undersigned is a broker-dealer that will receive New Notes for
its own account in exchange for Old Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such New Notes;
however, by so acknowledging and delivering a prospectus, the undersigned will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. If the undersigned is a broker-dealer and Old Notes held for its
own account were not acquired as a result of market-making or other trading
activities, such Old Notes cannot be exchanged pursuant to the Exchange Offer.
7. Any obligation of the undersigned hereunder shall be binding upon the
successors, assigns, executors, administrators, trustees in bankruptcy and legal
and personal representatives of the undersigned.
8. Unless otherwise indicated herein under "Special Delivery Instructions,"
the certificates for the New Notes will be issued in the name of the
undersigned.
SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 1)
To be completed ONLY IF the New Notes are to be issued or sent to someone
other than the undersigned or to the undersigned at an address other than that
provided above.
Mail [ ] Issue [ ] (check appropriate boxes) certificates to:
Name:
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Address:
- --------------------------------------------------------------------------------
(INCLUDING ZIP CODE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 5
SPECIAL REGISTRATION INSTRUCTIONS
(See Item 5)
To be completed ONLY IF (i) the undersigned satisfies the conditions set
forth in Item 5 above, (ii) the undersigned elects to register its Old Notes in
the Shelf Registration described in the Registration Agreement and (iii) the
undersigned agrees to indemnify certain entities and individuals as set forth in
the Registration Agreement and summarized in Item 5 above.
[ ] By checking this box the undersigned hereby (i) represents that it is
unable to make all of the representations and warranties set forth in Item 4
above, (ii) elects to have its Old Notes registered pursuant to the Shelf
Registration described in the Registration Agreement and (iii) agrees to
indemnify certain entities and individuals identified in, and to the extent
provided in, the Registration Agreement and summarized in Item 5 above.
SPECIAL BROKER-DEALER INSTRUCTIONS
(See Item 6)
[ ] Check here if you are a broker-dealer and wish to receive 10 additional
copies of the Prospectus and 10 copies of any amendments or supplements thereto.
<TABLE>
<S> <C>
Name:
------------------------------------------------------------
(PLEASE PRINT)
Address:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(INCLUDING ZIP CODE)
</TABLE>
<PAGE> 6
SIGNATURE
To be completed by all exchanging noteholders. Must be signed by registered
holder exactly as name appears on Old Notes. If signature is by trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, please set forth
full title. See Instruction 3.
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATURE
Dated:
- --------------------------------------------------------------------------------
Name(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDING ZIP CODE)
Area Code and Telephone No.:
- -------------------------------------------------------------------------
SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 1)
Certain Signatures Must be Guaranteed by an Eligible Institution
- --------------------------------------------------------------------------------
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES)
- --------------------------------------------------------------------------------
(ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER (INCLUDING AREA CODE) OF
FIRM)
- --------------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
- --------------------------------------------------------------------------------
(PRINTED NAME)
- --------------------------------------------------------------------------------
(TITLE)
Dated:
- --------------------------------------------------------------------------------
PLEASE READ THE INSTRUCTIONS BELOW,
WHICH FORM A PART OF THIS LETTER OF TRANSMITTAL.
<PAGE> 7
INSTRUCTIONS
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal must
be guaranteed by an eligible guarantor institution that is a member of or
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or by an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 promulgated under the Exchange
Act (an "Eligible Institution") unless the box entitled "Special Registration
Instructions" or "Special Delivery Instructions" above has not been completed or
the Old Notes described above are tendered for the account of an Eligible
Institution.
2. DELIVERY OF LETTER OF TRANSMITTAL AND OLD NOTES. The Old Notes, together
with a properly completed and duly executed Letter of Transmittal (or copy
thereof), should be mailed or delivered to the Exchange Agent at the address set
forth above.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF
THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN
OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE COMPANY. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES, OR
NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
3. SIGNATURE ON LETTER OF TRANSMITTAL, BOND POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by a person other than a registered holder
of any Old Notes, such Old Notes must be endorsed or accompanied by appropriate
bond powers, signed by such registered holder exactly as such registered
holder's name appears on such Old Notes.
If this Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted with this Letter of Transmittal.
4. MISCELLANEOUS. All questions as to the validity, form, eligibility
(including time of receipt), acceptance, and withdrawal of tendered Old Notes
will be determined by the Company in its sole discretion, which determination
will be final and binding on all parties. The Company reserves the absolute
right to reject any or all Old Notes not properly tendered or any Old Notes the
Company's acceptance of which would, in the opinion of counsel for the Company,
be unlawful. The Company also reserves the right to waive any defects,
irregularities, or conditions of tender as to particular Old Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in this Letter of Transmittal) will be final and
binding. Unless waived, any defects or irregularities in connection with tenders
of Old Notes must be cured within such time as the Company shall determine.
Neither the Company, the Exchange Agent, nor any other person shall be under any
duty to give notification of defects in such tenders or shall incur any
liability for failure to give such notification. Tenders of Old Notes will not
be deemed to have been made until such defects or irregularities have been cured
or waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering holder thereof as
soon as practicable following the Expiration Date.
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
TO TENDER
UNREGISTERED 9% SENIOR SUBORDINATED NOTES DUE 2008
(INCLUDING THOSE IN BOOK-ENTRY FORM)
OF
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED NOVEMBER , 1998
As set forth in the Prospectus (as defined below), this form or one
substantially equivalent hereto must be used to accept the Exchange Offer (i) if
certificates for unregistered 9% Senior Subordinated Notes due 2008 (the "Old
Notes") of Chancellor Media Corporation of Los Angeles, a Delaware corporation
(the "Company"), are not immediately available, (ii) time will not permit a
holder's Old Notes or other required documents to reach the Exchange Agent on or
prior to the Expiration Date (as defined below) or (iii) the procedure for
book-entry transfer cannot be completed on a timely basis. This form may be
delivered by facsimile transmission, registered or certified mail, by hand or by
overnight delivery service to the Exchange Agent. See "The Exchange
Offer -- Procedures for Tendering" in the Prospectus.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON DECEMBER , 1998 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED BY THE COMPANY.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
Deliver to:
The Bank of New York, Exchange Agent
<TABLE>
<S> <C>
By Registered or Certified Mail: By Hand or Overnight Delivery:
The Bank of New York
The Bank of New York 101 Barclays Street
101 Barclays Street Corporate Trust Services Window
Floor 7-E Ground Level
New York, New York 10286 New York, New York 10286
Attn: Chris Brown Attn: Chris Brown
</TABLE>
By Facsimile:
(Eligible Institutions Only)
(212) 815-6339
For Information or
Confirmation by Telephone:
(212) 815-4997
Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand or by overnight delivery service.
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OR
TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and subject
to the conditions set forth in the Prospectus dated November , 1998 (as the
same may be amended or supplemented from time to time, the "Prospectus"), and
the related Letter of Transmittal, receipt of which is hereby acknowledged, the
aggregate principal amount of Old Notes set forth below pursuant to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures."
Name(s) of Registered Holder(s):
- ---------------------------------------------------------------------
Aggregate Principal
Amount Tendered: $
- --------------------------------------------------------------------------------
Certificate No.(s)
(if available):
- --------------------------------------------------------------------------------
(Total Principal Amount Represented by
Old Notes Certificate(s)):
- -------------------------------------------------------------------------------
$
- --------------------------------------------------------------------------------
If Old Notes will be tendered by book-entry transfer, provide the following
information:
DTC Account Number:
- --------------------------------------------------------------------------------
Date:
- --------------------------------------------------------------------------------
- ---------------
* Must be in denominations of $1,000 and any integral multiple thereof.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
<PAGE> 3
PLEASE SIGN HERE
<TABLE>
<S> <C>
X ------------------------------------------------ ---------------------------------------
X ------------------------------------------------ ---------------------------------------
Signature(s) or Owner(s) Date
or Authorized Signatory
</TABLE>
Area Code and Telephone Number:
- --------------------------------------------------------------------
Must be signed by the holder(s) of the Old Notes as their name(s) appear(s)
on certificates for Old Notes or on a security position listing, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
- --------------------------------------------------------------------------------
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Capacity:
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Address(es):
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<PAGE> 4
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of or participant in the Securities Transfer
Agents Medallion Program, the New York Stock Exchange Signature Program or a
firm or other entity identified in Rule 17Ad-15 under the Securities Exchange
Act of 1934, as amended, as an "eligible guarantor institution," including (as
such terms are defined therein): (i) a bank; (ii) a broker, dealer, municipal
securities broker, municipal securities dealer, government securities broker,
government securities dealer; (iii) a credit union; (iv) a national securities
exchange, registered securities association or learning agency; or (v) a savings
association that is a participant in a Securities Transfer Association
recognized program (each of the foregoing being referred to as an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent, at one of its
addresses set forth above, either the Old Notes tendered hereby in proper form
for transfer, or confirmation of the book-entry transfer of such Old Notes to
the Exchange Agent's account at The Depositary Trust Company, pursuant to the
procedures for book-entry transfer set forth in the Prospectus, within three New
York Stock Exchange, Inc. trading days after the date of execution of this
Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Old Notes tendered
hereby to the Exchange Agent within the time period set forth above and that
failure to do so could result in a financial loss to the undersigned.
<TABLE>
<S> <C>
- --------------------------------------------------- ---------------------------------------------------
Name of Firm Authorized Signature
- --------------------------------------------------- ---------------------------------------------------
Address Title
- --------------------------------------------------- ---------------------------------------------------
Zip Code (Please Type or Print)
Area Code and Telephone No.: ---------------- Dated: -------------------------------------------
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM.
