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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EVERGREEN MEDIA CORPORATION
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(Exact name of Registrant as Specified in Its Charter)
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Delaware 75-2247099
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(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
433 East Las Colinas Boulevard, Suite 1130, Irving, Texas 75039
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of If this form relates to the registration of a class
securities pursuant to Section 12(b) of the Exchange of securities pursuant to Section 12(g) of the
Act and is effective upon filing pursuant to General Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ] Instruction A.(d), check the following box. [X]
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Securities Act registration file number to which this form relates:
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N/A
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class to be so Registered Name of Each Exchange on Which
Each Class is to be Registered
N/A N/A
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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(Title of Class)
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
This Registration Statement on Form 8-A registers the Common
Stock, par value $.01 per share (the "Common Stock"), of Evergreen Media
Corporation (the "Company") under the Securities Exchange Act of 1934, as
amended. Pursuant to the Amended and Restated Agreement and Plan of Merger,
dated February 19, 1997 and amended and restated as of July 31, 1997 (the
"Merger Agreement"), among Chancellor Broadcasting Company, a Delaware
corporation ("Chancellor"), Chancellor Radio Broadcasting Company, a Delaware
corporation ("CRBC"), the Company, Evergreen Mezzanine Holdings Corporation, a
Delaware corporation ("EMHC") and Evergreen Media Corporation of Los Angeles, a
Delaware corporation ("EMCLA"), among other things, (i) Chancellor will be
merged (the "Parent Merger") with and into EMHC, a wholly-owned subsidiary of
the Company, with EMHC surviving the Parent Merger and (ii) CRBC will be merged
(the "Subsidiary Merger" and, collectively with the Parent Merger, the
"Merger") with and into EMCLA, a wholly-owned subsidiary of EMHC, with EMCLA
surviving the Subsidiary Merger. Upon consummation of the Parent Merger,
Evergreen will be renamed Chancellor Media Corporation and EMHC will be renamed
Chancellor Mezzanine Holdings Corporation. Upon consummation of the Subsidiary
Merger, EMCLA will be renamed Chancellor Media Corporation of Los Angeles.
Upon consummation of the Parent Merger, among other things,
(i) each share of the Company's Class A Common Stock, par value $.01 per share
(the "Company Common Stock"), and the Company's Class B Common Stock, par value
$.01 per share (the "Company Class B Common Stock" and, together with the
Company Class A Common Stock, the "Company Common Stock") outstanding
immediately prior to the effective time of the Parent Merger (the "Effective
Time") will be reclassified, changed and converted into one share of Common
Stock and (ii) each share of Chancellor's Class A Common Stock, par value $.01
per share (the "Chancellor Class A Common Stock"), and Chancellor's Class B
Common Stock, par value $.01 per share (the "Chancellor Class B Common Stock"
and, together with the Chancellor Class A Common Stock, the "Chancellor Common
Stock") outstanding immediately prior to the Effective Time of the Parent
Merger will be converted into the right to receive 0.9091 shares of Common
Stock.
For a description of the Common Stock that would be issued
upon reclassification, change and conversion of the Evergreen Common Stock and
in exchange for shares of the Chancellor Common Stock as described above,
reference is made to the information under the captions "Description of
Surviving Corporation Capital Stock" and "General Comparison of Stockholders
Rights" contained in the Joint Proxy Statement / Prospectus of the Company and
Chancellor filed with the Securities and Exchange Commission on August 1, 1997
as part of the Company's Registration Statement on Form S-4 (Registration No.
333-32677).
Item 2. Exhibits
1. Specimen Common Stock Certificate of Chancellor Media
Corporation (filed as Exhibit 4.12 to the Registration
Statement on Form S-4 (File No. 333-32677) of Evergreen Media
Corporation and incorporated herein by reference).
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2.1 Certificate of Amendment of Restated Certificate of
Incorporation of Evergreen Media Corporation (filed as Exhibit
3.1B to the Registration Statement on Form S-1, as amended
(Reg. No. 33-69752) of Evergreen Media Corporation and
incorporated herein by reference) (in force as of the date of
filing).
2.2 Bylaws of Evergreen Media Corporation (filed as Exhibit 3.2 to
the Registration Statement on Form S-1, as amended (Reg. No.
33-60036) of Evergreen Media Corporation) (in force as of the
date of filing).
2.3 Amended and Restated Certificate of Incorporation of
Chancellor Media Corporation (filed herewith) (to be in force
as of the Effective Time of the Parent Merger (as each term is
defined in this Registration Statement on Form 8-A)).
2.4 Amended and Restated Bylaws of Chancellor Media Corporation
(filed herewith) (to be in force as of the Effective Time of
the Parent Merger (as each term is defined in this
Registration Statement on Form 8- A)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant duly has caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
EVERGREEN MEDIA CORPORATION
By: /s/ Matthew E. Devine
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Matthew E. Devine
Chief Financial Officer
Dated: September 2, 1997
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EXHIBIT INDEX
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Exhibit No. Exhibit Page
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1. Specimen Common Stock Certificate of Chancellor Media
Corporation (filed as Exhibit 4.12 to the Registration
Statement on Form S-4 (File No. 333-32677) of Evergreen Media
Corporation and incorporated herein by reference).
2.1 Certificate of Amendment of Restated Certificate of
Incorporation of Evergreen Media Corporation (filed as Exhibit
3.1B to the Registration Statement on Form S-1, as amended
(Reg. No. 33-69752) of Evergreen Media Corporation and
incorporated herein by reference) (in force as of the date of
filing).
2.2 Bylaws of Evergreen Media Corporation (filed as Exhibit 3.2 to
the Registration Statement on Form S-1, as amended (Reg. No.
33-60036) of Evergreen Media Corporation) (in force as of the
date of filing).
2.3 Amended and Restated Certificate of Incorporation of
Chancellor Media Corporation (filed herewith) (to be in force
as of the Effective Time of the Parent Merger (as each term is
defined in this Registration Statement on Form 8-A)).
2.4 Amended and Restated Bylaws of Chancellor Media Corporation
(filed herewith) (to be in force as of the Effective Time of
the Parent Merger (as each term is defined in this
Registration Statement on Form 8- A)).
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EXHIBIT 2.3
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EVERGREEN MEDIA CORPORATION
(ORIGINALLY INCORPORATED ON JUNE 22, 1988)
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FIRST: The name of the corporation is Chancellor Media
Corporation (the "Corporation").
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 the State of Delaware.
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 325,000,000 shares
consisting of (a) 50,000,000 shares of preferred stock, par value $.01 per
share (the "Preferred Stock"), (b) 200,000,000 shares of Common Stock, par
value $.01 per share (the "Common Stock") and (c) 75,000,000 shares of Class A
Common Stock, par value $.01 per share (the "Class A Common Stock").
The designations, powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock, the
Common Stock and the Class A Common Stock are as follows:
1. Reclassification of Existing Class A and Class B Common Stock.
(a) Upon the filing of this Amended and Restated Certificate
of Incorporation, each share of Class A Common Stock, par value $.01 per share,
of the Corporation outstanding shall be reclassified, changed and converted
into one share of the Common Stock, and each share of Class B Common Stock, par
value $.01 per share, of the Corporation outstanding shall be reclassified into
one share of Common Stock (such reclassifications collectively being the
"Reclassification").
(b) After the Reclassification, each holder of the shares of
capital stock of the Corporation being reclassified, changed and converted as
provided herein shall be entitled to receive, upon surrender at the office of
the Corporation or the transfer agent for the Common Stock of such holder's
certificate or certificates representing the shares being reclassified, duly
endorsed in blank or accompanied by duly executed proper instruments of
transfer, as promptly
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as practicable after such surrender one or more certificates evidencing the
Common Stock issuable to such holder in respect of the Reclassification. After
the Reclassification, pending the issuance and delivery of such certificates in
accordance herewith, the certificate or certificates evidencing the shares of
previously outstanding class A and class B common stock being reclassified
shall be deemed to evidence the shares of Common Stock issuable upon the
Reclassification.
2. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in
one or more classes or series, the shares of each class or series to have such
designations, powers, preferences and rights and such qualifications,
limitations and restrictions thereof as are stated and expressed herein and in
the resolution or resolutions providing for the issue of such class or series
adopted by the Board of Directors of the Corporation (the "Board of Directors")
as hereafter prescribed.
(b) Authority is hereby expressly granted to and vested in
the Board of Directors to authorize the issuance of the Preferred Stock from
time to time in one or more classes or series, and with respect to each class
or series of the Preferred Stock, to fix and state by the resolution or
resolutions from time to time adopted providing for the issuance thereof the
following:
(i) whether or not the class or series is to
have voting rights, full, special or limited, or is to be without
voting rights, and whether or not such class or series is to be
entitled to vote as a separate class either alone or together with the
holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class
or series and the designations thereof;
(iii) the preferences and relative, participating,
optional or other special rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to any class
or series;
(iv) whether or not the shares of any class or
series shall be redeemable at the option of the Corporation or the
holders thereof or upon the happening of any specified event, and, if
redeemable, the redemption price or prices (which may be payable in
the form of cash, notes, securities or other property) and the time or
times at which, and the terms and conditions upon which, such shares
shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or
series shall be subject to the operation of retirement or sinking
funds to be applied to the purchase or redemption of such shares for
retirement, and, if such retirement or sinking fund or funds are to be
established, the annual amount thereof and the terms and provisions
relative to the operation thereof;
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(vi) the dividend rate, whether dividends are
payable in cash, securities of the Corporation or other property, the
conditions upon which and the times when such dividends are payable,
the preference to or the relation to the payment of dividends payable
on any other class or classes or series of stock, whether or not such
dividends shall be cumulative or noncumulative and, if cumulative, the
date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts
thereof which the holders of any class or series thereof shall be
entitled to receive upon the voluntary or involuntary dissolution of,
or upon any distribution of the assets of, the Corporation;
(viii) whether or not the shares of any class or
series, at the option of the Corporation or the holder thereof or upon
the happening of any specified event, shall be convertible into or
exchangeable for the shares of any other class or classes or of any
other series of the same or any other class or classes of stock,
securities, or other property of the Corporation and the conversion
price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be
stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and protective
provisions with respect to any class or series as may to the Board of
Directors seem advisable.
(c) The shares of each class or series of the Preferred
Stock may vary from the shares of any other class or series thereof in any or
all of the foregoing respects. The Board of Directors may increase the number
of shares of the Preferred Stock designated for any existing class or series by
a resolution adding to such class or series authorized and unissued shares of
the Preferred Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock designated
for any existing class or series by a resolution subtracting from such class or
series authorized and unissued shares of the Preferred Stock designated for
such existing class or series, and the shares so subtracted shall become
authorized, unissued and undesignated shares of the Preferred Stock.
(d) The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock and Class A Common Stock, each voting as a separate class, without a vote
of a majority of the holders of the Preferred Stock, or of any class or series
thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing such class or series of Preferred
Stock.
3. Provisions Relating to the Common Stock and Class A Common
Stock.
(a) Except as otherwise set forth in this Paragraph 3,
each share of Common Stock and Class A Common Stock of the Corporation shall
have identical rights and privileges in every respect. The holders of shares of
Common Stock shall be entitled to vote as a class upon
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all matters submitted to a vote of the stockholders of the Corporation and
shall be entitled to one vote for each share of Common Stock held, and the
holders of shares of Class A Common Stock shall be entitled to vote upon all
matters submitted to a vote of the stockholders of the Corporation as a
separate class and shall be entitled to one vote for each share of Class A
Common Stock held.
(b) Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock or any series thereof, the holders
of shares of the Common Stock and Class A Common Stock shall be entitled to
receive and participate ratably in such dividends (payable in cash, stock, or
otherwise) as may be declared thereon by the board of directors at any time and
from time to time out of any funds of the Corporation legally available
therefor.
(c) In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, after distribution
in full of the preferential amounts, if any, to be distributed to the holders
of shares of the Preferred Stock or any series thereof, the holders of shares
of the Common Stock and Class A Common Stock shall be entitled to receive all
of the remaining assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of the Common Stock
or Class A Common Stock held by them.
(d) With respect to any Going Private Transaction (as
defined below) between the Corporation and Scott K. Ginsburg or Affiliates of
Scott K. Ginsburg (as defined below), the holders of the Common Stock and the
Class A Common Stock shall each vote separately as a class. For purposes of
this Paragraph 3(d), the term "Going Private Transaction" shall mean any
transaction that is a "Rule 13e-3 Transaction," as such term is defined in Rule
13e-3(a)(3), 17 C.F.R. ss. 240.13e-3, as amended from time to time, promulgated
under the Securities Exchange Act of 1934, as amended. The term "Affiliate of
Scott K. Ginsburg" shall mean (x) any corporation of which Scott K. Ginsburg is
the beneficial owner of 50% or more of the combined voting power of all classes
of equity securities, (y) any trust or other estate in which Scott K. Ginsburg
serves as trustee or in a similar capacity, or (z) any partnership, joint
venture, or unincorporated organization that is under the direct or indirect
control of Scott K. Ginsburg, such that Scott K. Ginsburg possesses, directly
or indirectly, the power to direct or cause the direction of the management and
policies of such entity whether through the ownership of voting securities, by
contract, or otherwise.
4. General.
(a) Subject to the foregoing provisions of this
Certificate of Incorporation, the Corporation may issue shares of its Common
Stock and Class A Common Stock from time to time for such consideration (not
less than the par 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 to the foregoing conditions; provided, however, that
notwithstanding the foregoing, the Corporation may not issue shares of Class A
Common Stock without the unanimous vote or written consent of the Board of
Directors of the Corporation. Shares so issued for which the consideration
shall have been paid or delivered to the Corporation shall be
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deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
(b) The Corporation shall have authority to create and
issue rights and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities of the
Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the Board of Directors. The Board of Directors shall be empowered
to set the exercise price, duration, times for exercise, and other terms of
such options or rights; provided, however, that the consideration to be
received for any shares of capital stock subject thereto shall not be less than
the par value thereof.
FIFTH: The number of directors constituting the Board of
Directors shall be no less than five and no more than thirteen, plus such
number of directors as may be elected from time to time by the holders of any
class or series of Preferred Stock. Commencing on the date on which this
Amended and Restated Certificate of Incorporation shall become effective
pursuant to the General Corporation Law of the State of Delaware, the directors
of the Corporation shall be divided into three classes (the "Classified
Directors") with the first class ("Class I"), second class ("Class II") and the
third class ("Class III") each to consist as nearly as practicable of an equal
number of directors. The term of office of the Class I directors shall expire
at the 1998 annual meeting of stockholders, the term of office of the Class II
directors shall expire at the 1999 annual meeting of stockholders and the term
of office of the Class III directors shall expire at the 2000 annual meeting of
stockholders, with each director to hold office until his or her successor
shall have been duly elected and qualified. At each annual meeting of
stockholders, commencing with the 1998 annual meeting, Classified Directors
elected to succeed those Classified Directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election.
SIXTH: The directors of the Corporation need not be elected
by written ballot unless the bylaws of the Corporation otherwise provide.
SEVENTH: The following provisions are included for the purpose
of ensuring that control and management of the Corporation remains with loyal
citizens of the United States and/or corporations formed under the laws of the
United States or any of the states of the United States, as required by the
Communications Act of 1934, as the same may be amended from time to time:
(a) The Corporation shall not issue to (i) a
person who is a citizen of a country other than the United
States; (ii) any entity organized under the laws of a
government other than the government of the United States or
any state, territory, or possession of the United States;
(iii) a government other than the government of the United
States or of any state, territory, or possession of the
United States; or (iv) a representative of, or an individual
or entity controlled by, any of the foregoing (individually,
an "Alien"; collectively, "Aliens") in excess of 25% of the
total number of shares of capital stock of the Corporation
outstanding at any time and shall
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not permit the transfer on the books of the corporation of
any capital stock to any Alien that would result in the total
number of shares of such capital stock held by Aliens
exceeding such 25% limit.
(b) No Alien or Aliens shall be entitled to vote
or direct or control the vote of more than 25% of (i) the
total number of shares of capital stock of the Corporation
outstanding and entitled to vote at any time and from time to
time, or (ii) the total voting power of all shares of capital
stock of the Corporation outstanding and entitled to vote at
any time and from time to time.
(c) No Alien shall be qualified to act as an
officer of the Corporation, and no more than one-fourth of
the total number of directors of the Corporation at any time
and from time to time may be Aliens.
(d) The Board of Directors of the Corporation
shall have all powers necessary to implement the provisions
of this Article Seventh.
EIGHTH: 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 hereinafter defined) 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. "Person" as used
herein means any corporation, partnership, association, firm, trust, joint
venture, political subdivision or instrumentality.
NINTH: 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,
officer, employee or agent of the Corporation, or (ii) 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 General Corporation Law of the State of Delaware, as the
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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 Ninth is in effect. Any repeal or amendment of this Article Ninth 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
Ninth. Such right shall include the right to be paid by the Corporation
expenses incurred in investigating or defending any such proceeding in advance
of its final disposition to the maximum extent permitted under the General
Corporation Law of the State of Delaware, as the same exists or may hereafter
be amended. To the extent that a director, officer, employee or agent of the
corporation shall be successful on the merits or otherwise in defense of any
proceeding, or in defense of any claim, issue, or matter therein, he or she
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith. 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 is not permitted under the
General Corporation Law of the State of Delaware, but the burden of proving
such defense shall be on the Corporation. None of (i) 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, (ii) 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, or
(iii) the termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, 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, bylaw, 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.
Without limiting the generality of the foregoing, to the
extent permitted by then applicable law, the grant of mandatory indemnification
pursuant to this Article Ninth shall extend to proceedings involving the
negligence of such Person.
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
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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,
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 against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article Ninth.
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.
TENTH: 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 General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or amendment of this
Article Tenth 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 Tenth, 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 General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation, which restates, integrates and
further amends all Articles of the Corporation's Restated Certificate of
Incorporation pursuant to Sections 242 and 245 of the Delaware General
Corporation Law, and which includes and incorporates by reference, without
amendment, the designations, powers and preferences, and the relative
participating, optional or other special rights, and the qualifications,
limitations and restrictions thereof, of the $3.00 Convertible Exchangeable
Preferred Stock of the Corporation (the shares of which series shall, upon the
effectiveness of this Amended and Restated Certificate of Incorporation, be
convertible into Common Stock of the Corporation rather than Class A Common
Stock of the Corporation, pursuant to and in accordance with, and to the extent
provided by, the terms of such series) as set forth in Exhibit A attached
hereto, to be signed by its duly authorized officer this ______ day of
September, 1997.
EVERGREEN MEDIA CORPORATION
By:
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Name: Matthew E. Devine
Title: Executive Vice President, Chief
Financial Officer and Secretary
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Exhibit 2.4
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AMENDED AND RESTATED
BYLAWS
OF
CHANCELLOR MEDIA CORPORATION
A DELAWARE CORPORATION
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ARTICLE 1. OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Registered Office and Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2. MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10. Conduct of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.11. Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7. First Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.14. Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.15. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4. COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1. Designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2. Number; Qualification; Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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4.4. Committee Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5. Alternate Members of Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.6. Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.7. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.8. Quorum; Majority Vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9. Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.10. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.11. Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 5. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1. Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 6. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1. Number; Titles; Term of Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.2. Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.3. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.4. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.5. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.6. Chairman of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.7. President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.8. Chief Operating Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.9. Vice Presidents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.10. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.11. Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.12. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.13. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 7. CERTIFICATES AND SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.1. Certificates for Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.2. Replacement of Lost or Destroyed Certificates. . . . . . . . . . . . . . . . . . . . . . . . 12
7.3. Transfer of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.4. Registered Stockholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.5. Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.6. Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 8. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.1. Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.2. Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.3. Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.4. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.5. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.6. Resignations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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8.7. Securities of Other Corporations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.8. Telephone Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.9. Action Without a Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.10. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.11. Mortgages, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.13. References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.14. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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AMENDED AND RESTATED
BYLAWS
OF
CHANCELLOR MEDIA CORPORATION
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 Chancellor Media 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 1.
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 2
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, 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 executive 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
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.
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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 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 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. (a) Record Date. 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
3
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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 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.
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<PAGE> 9
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 3.
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 five nor more than thirteen, plus such number of directors as may be
elected from time to time by the holders of any class or series of preferred
stock of the Corporation. 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. Except as otherwise required by law, the
certificate of incorporation of the Corporation, or these bylaws, 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.
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<PAGE> 10
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 by law or 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.
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, provided, however, that if pursuant to a provision
of the certificate of incorporation a class of capital stock of the Corporation
shall have the right to vote as a class to elect a director, then the vacancy
as to a director so elected shall be filled by a vote of the holders of such
class. 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.
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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.
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
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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 4.
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.
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
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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 5.
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.
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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 6.
OFFICERS
6.1. Number; Titles; Term of Office. The officers of the
Corporation shall be a President, one or more Chief Operating Officers, 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 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.
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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. Chief Operating Officer. The Chief Operating
Officer(s) shall have the day to day responsibility for the business operations
of the Corporation, reporting to the President and subject to the control of
the board of directors.
6.9. 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.
6.10. 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.
6.11. 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.
6.12. 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
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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.
6.13. 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 7.
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
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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.
ARTICLE 8.
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.
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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 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
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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 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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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) that I am the duly elected and Acting Secretary of Chancellor
Media Corporation, a Delaware corporation; and
(2) that the foregoing Bylaws, comprising eighteen pages,
constitute the Bylaws of said corporation as approved by the Board of Directors
of said corporation on July 30, 1997.
IN WITNESS WHEREOF, I have hereunto subscribed my name this ___ day
of September, 1997.
----------------------------
Matthew E. Devine, Secretary
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